John Kent v. First Secretary of State and others

Transcript date:

Friday, December 3, 2004

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Sir Michael Harrison

CO/550/2004

 

Neutral Citation Number: [2004] EWHC 2953 (Admin)

 

IN THE HIGH COURT OF JUSTICE

 

QUEEN'S BENCH DIVISION

 

THE ADMINISTRATIVE COURT

 

 

Royal Courts of Justice

Strand

 

London WC2

 

Friday, 3 December 2004

 

B E F O R E:

SIR MICHAEL HARRISON

 

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THE QUEEN ON THE APPLICATION OF JOHN KENT

 

(CLAIMANT)

-v-

(1) FIRST SECRETARY OF STATE

 

(2) CHESHIRE COUNTY COUNCIL

 

(3) MINOSUS LIMITED

 

(DEFENDANTS)

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Computer-Aided Transcript of the Stenograph Notes of

 

Smith Bernal Wordwave Limited

 

190 Fleet Street London EC4A 2AG

 

Tel No: 020 7404 1400 Fax No: 020 7831 8838

 

(Official Shorthand Writers to the Court)

 

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MR R JAY QC & MR C ZWART (instructed by Richard Buxton) appeared on behalf of the CLAIMANT

MS N LIEVEN & MS C PATRY (instructed by the Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT

 

MR R PRICE LEWIS QC (instructed by Addleshaw Goddard) appeared on behalf of the THIRD DEFENDANT

 

The SECOND DEFENDANT was not represented and did not appear

 

 

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J U D G M E N T

 

(As Approved by the Court)

 

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Crown copyright©

 

 

 

1. SIR MICHAEL HARRISON:

Introduction

 

2. This is an application under section an 88 of the Town and Country Planning Act 1990 to quash a decision of the first defendant, the First Secretary of State, dated 23rd December 2003, when he granted planning permission subject to conditions for the use of rock salt caverns within the Bostock No. 5 panel of the Winsford Rock Salt Mine (which is still an active mine) at Jack Lane, Bostock, Middlewich, for waste disposal purposes.

 

3. The claimant lives near the site. The second defendant, Cheshire County Council, who are the waste planning authority, did not appear at the hearing. The third defendant, Minosus Limited, is the applicant for planning permission and was represented by counsel at the hearing.

 

4. There is a history to this matter in that the Secretary of State called in the planning application for his own decision under section 77 of the 1990 Act. One of the matters about which he wished to be informed was the physical suitability of the site for the proposed development, having regard, inter alia, to the assessment of risk.

 

5. On 14th November 2001 a public inquiry was held which lasted for 14 days. The Inspector appointed to hold the inquiry was assisted by an assessor who advised him on matters relating to geology, hydrogeology and mine stability. The Environment Agency was made a Rule 6 party and called witnesses at the inquiry. Among the objectors who appeared at the inquiry were the Davenham and Moulton Parish Councils and an organisation known as Residents Against Mine Pollution (RAMP). In a report dated 12th April 2002 the Inspector recommended that planning permission should be granted subject to conditions. It will be necessary to refer to some parts of the Inspector's report.

 

6. On 26th July 2002 the Secretary of State granted conditional planning permission for the proposed development. However, the claimant successfully challenged that decision under section 288 of the 1990 Act and the decision was quashed by consent on 19th February 2003 on the ground that the Secretary of State had erred in incorporating into the conditions the entirety of the environmental assessment which had accompanied the planning application.

 

7. On 16th April 2003 the Secretary of State invited further representations on a number of matters, which included the types and volume of waste to be disposed of at the mine. Having considered the representations received, the Secretary of State concluded that the majority of the issues had been considered by the Inspector at the inquiry and that the majority of the representations re-emphasised the representations that had been made at the inquiry. He therefore decided that it was not necessary to reopen the inquiry and that it would be appropriate to redetermine the case by considering the further recommendations received alongside the Inspector's report and the evidence given at the inquiry.

 

8. In a decision letter dated 23th December 2003 the Secretary of State granted planning permission for the proposed development subject to alternative conditions which had been suggested by Minosus Limited. It will be necessary to refer to some parts of that decision letter which is the decision which the claimant seeks to quash in these proceedings.

 

9. The main issue in this case relates to the adequacy of the environmental statement, having regard to the requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (" the EIA Regulations") and the interrelationship between those Regulations and the Pollution Prevention and Control (England and Wales) Regulations 2000 ("the PPC Regulations").

 

Statutory provisions

 

10. It may be helpful if I were to refer at this stage to the relevant statutory provisions before descending into the detail of the factual background of this case. The EIA Regulations gave effect to the Environmental Impact Assessment Directive 85/337/EC, as amended by Directive 97/337EEC. The PPC Regulations gave effect to the Integrated Pollution Prevention and Control Directive 96/61/EC. I was referred to those Directives, as well as to some other Directives, but there was no suggestion that the EIA Regulations and the PPC Regulations did not correctly transpose their parent Directive into domestic law, so I only propose to refer to the Regulations, although I bear in mind the provisions of the Directives when considering the purpose and meaning of the Regulations.

 

a) the EIA Regulations

 

11. Turning first to the EIA Regulations, an EIA development is defined as including a Schedule 1 development. Landfill of hazardous waste is included in paragraph 9 of Schedule 1 as a Schedule 1 development. The proposed development in this case involved landfill of hazardous waste and it was therefore an EIA development. An application for planning permission for such development is called an EIA application. Under Regulation 3(2) planning permission cannot be granted pursuant to such an application unless the environmental information has first been taken into consideration. Regulation 2 defines the "environmental information" as meaning:

 

"... the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development."

 

12. "Environmental statement" is defined as meaning a statement:

 

"(a)that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

 

(b) that includes at least the information referred to in Part II of Schedule 4."

 

13. Part II of Schedule 4 includes at paragraph 1, a description of the development ; at paragraph 2, a description of the measures envisaged to avoid, reduce and, if possible, remedy significant adverse effects, and at paragraph 3:

 

"The data required to identify and assess the main effects which the development is likely to have on the environment."

 

14. The main thrust of the claimant's case is that the environmental statement in this case did not include the data required by paragraph 3 of Part II of Schedule 4 of the EIA Regulations in that it did not specify the types of waste to be deposited with sufficient particularity.

 

b) the PPC Regulations

 

15. I turn next to the PPC Regulations. The system of control under the Directive is known as the IPPC system of control, and the control under the Regulations is known as the PPC system of control. I only mention that because from time to time reference is made in the documents to the IPPC system of control when in fact it is referring to the PPC system of control under the Regulations. For present purposes it is sufficient to say that in a case of this kind the PPC Regulations require a permit to be obtained from the Environment Agency (regulation 9). Such a permit shall not be granted unless planning permission is in force in relation to the use of the land (regulation 10(4)(b)). When determining the conditions of a permit, the Environment Agency has to take into account that the installation has to be operated in such a way that all the appropriate preventative measures are taken against pollution through application of the best available techniques, and that no significant pollution is caused (regulation 11). Paragraph 1 of Part I of Schedule 4 sets out the information that has to be contained in the application for the permit. Paragraph 13 of Part II of Schedule 4 provides that any relevant information obtained or conclusion arrived at under Articles 5, 6 and 7 of the EIA Regulations shall be taken into consideration by the Environment Agency when determining the permit application.

 

The factual background

 

16. I turn next to the factual background. I have already referred briefly to the history of the determination of the planning application. It is necessary first of all to summarise the material that was before the Inspector and the Secretary of State, and then to summarise their respective findings and conclusions.

 

a) the environmental statement

 

17. The Inspector and the Secretary of State had before them the environmental statement that accompanied the planning application, together with the further information which had been requested by the Secretary of State under Regulation 19 of the EIA Regulations. Paragraph 2.4.1 of the environmental statement stated that Table 2.1 illustrated those types of wastes which would be, and would not be, received by Minosus Limited. It stated:

 

"As described in Table 2.1 wastes likely to be acceptable can broadly be described as being stable, solid, non-explosive, non deliquescent, non reactive on exposure to air, salt or moisture and packaged within a suitable container. Wastes which would not be acceptable in the mine can be classified as those which are radioactive, liquid, readily supportive of combustion, vapourising or fuming, odorous, biodegradable, chemically reactive and inadequately contained or packaged."

 

18. The document then set out Table 2.1 which was headed "Acceptable Wastes for Minosus Disposal". Under the subheading "Which Wastes would come to Minosus", the Table contained a "yes" column and a " no" column. Under the "yes" column, the table specified " Solid; Non-flammable; Non-explosive; Non-volatile; Non-deliquescent; Suitable packaged; and Non-reactive upon exposure to air, salt or moisture". Under the "no" column, the table specified "Radioactive; Liquid; Explosive or Flammable; Vapourising or Fuming; Biodegradable; Odorous; and Inadequately or not securely packaged". A very similar table was also included with the further information provided to the Secretary of State.

 

19. Chapter 13 of the environmental statement contained a qualitative risk assessment. That approach was justified on the basis of a technical assessment which set out ten matters which the Inspector described as baseline conditions, and which mostly related to characteristics of the mine. The seventh was that there was no route by which waste materials placed in the mine could return to the surface and come into contact with people or other living things, and the eighth was that the types of waste planned for disposal were dry, stable, not readily combustible, and typical of waste currently buried in surface landfills.

 

20. It was stated that the recommended level of risk assessment was based on a staged approach, drawing on expert judgment, historic mine information and validated data. The approach was supported by the results of numerical modelling conducted at Nottingham University and by "hard data" supplied from the data assessment, a footnote explaining that "hard data" was data derived from physical processes or tests that can be validated.

 

21. It was stated that the foundation of the risk assessment was the baseline geological and hydrogeological report of Professor Dunham at Nottingham University and the British Geological Survey. The risk assessment explained that it integrated into the basic understanding of the mine environment the known toxicology of the wastes, the long-term physical and chemical properties of the wastes over the duration of the operations, the potential geosphere pathways, both back into the mine or off site, the mine ventilation system to assess potential air pathways, and key receptor groups.

 

22. The risk assessment stated:

 

"In order to ensure that a balanced, integrated and both technically and scientific sound assessment was carried out, three waste types, considered to be of most concern in the environmental context that would be acceptable to Minosus, were selected. The selection of the 'most reactive' and 'most volatile' wastes took into account that reactive, volatile or flammable wastes would not be accepted at Winsford. Therefore the following selection was made from the list of potentially acceptable waste types in Table 13.1.

 

Table 13.1 presents a list of the range of waste types that Minosus expect to receive for disposal in the mine. The list in itself should however be regarded as indicative and not as definitive. Within the terms of the Waste Management Site Licence, the Minosus site Chemist would have complete jurisdiction regarding which specific wastes can be accepted and which cannot, following detailed analysis and examination of every customer enquiry."

 

23. Table 13.1 is headed "Indicative Waste Streams for Disposal at Winsford". It contains two pages of waste descriptions with a hazard ranking for each of them. The three waste types selected for risk assessment were firstly, fly-ash, which was described as "most representative" and which was given a medium hazard ranking in Table 13.1; secondly, soda, which was described as "most reactive" and which was given a low hazard ranking in Table 13.1; and thirdly, wax, which was described as " most volatile" and which, although under a description in Table 13.1 which an untutored eye would not pick up as being wax, was given a high hazard ranking.

 

24. The qualitative risk assessment then followed a standard methodology of dividing it into three components: source, being the waste itself; pathways, being all the routes by which the waste derivatives could reach key receptors; and receptors, identifying those receptors most vulnerable to potential contamination. Each of the selected waste types was subject to 11 different scenarios of disruptive events, such as flooding of the repository area following an ingress of mine water into the mine workings, or rupture of a container.

 

25. The assessment concluded that the levels of risk were considered to be generally low or negligible, although a number of potential health and safety issues were identified that would require mitigation.

 

26. I should also have mentioned that the PPC permit application included what was called a "waste acceptance decision tree", which was also before the Inspector and the Secretary of State, and which was a form of flow chart containing 11 criteria which could lead to the exclusion of a waste.

 

b) the inquiry

 

27. So much for a summary of the relevant material before the Inspector and the Secretary of State. The County Council as waste planning authority appeared at the inquiry. They considered that there was no proper ground on which planning permission should be refused. They concluded that there would be no realistic likelihood of underground or surface releases to air from the waste that could affect sensitive receptors.

 

28. The Environment Agency appeared at the inquiry. They had no objection in principle. They explained the various matters that they would be considering when determining the PPC permit application which had already been made and which was in the initial stages of being processed. They explained that they would be considering a detailed assessment of waste types, quantities and acceptance criteria. They told the Inspector, as recorded by him at paragraph 9.5 of his report:

 

"Any PPC permit would therefore be likely to exclude infectious waste; substances or preparations which may release toxic waste gases in contact with water, air or an acid; substances that may react with air, water or brine or are chemically unstable; substances and preparations capable by any means of yielding another harmful substance post disposal; substances and preparations that would release a gas or vapour under mine conditions; any waste that is not a solid, a powder or a viscous paste; sludges or wastes containing free liquid and any waste that exhibits flow characteristics similar to a liquid or a sludge; waste with an excessive water content; biodegradable wastes; deliquescent wastes; most wastes that would react with other permitted waste types."

 

29. In a subsequent representation dated 1st May 2003, following the quashing of the Secretary of State's decision, the Environment Agency expressed the view that the detailed control of the operation was better addressed through the PPC Regulations rather than the planning process.

 

30. The Vale Royal Borough Council appeared at the inquiry. They did not actively support or object to the proposed development. They had had a concern over the long-term safety implications of the underground storage of waste materials but they had commissioned consultants to undertake a detailed review of that aspect. The consultants had answered that concern to the Council's satisfaction and so they did not pursue that issue at the inquiry. Subsequently, however, when making further representations following the quashing of the Secretary of State's decision of 26th July 2002, the Borough Council, in a letter to the Secretary of State dated 30th April 2003, said that the Council still had concerns over all safety issues which needed to be addressed with knowledge of the quantity, nature and risk assessment of waste proposed to be stored. In a letter of 30th June 2003 to the Secretary of State, solicitors for Minosus Limited pointed out the contradiction of that stance from the stance taken by the Borough Council at the inquiry and noted the absence of any committee authority for the new stance.

 

31. As I said previously, both RAMP and the Parish Councils were objectors at the inquiry, as were Friends of the Earth. It was part of the Parish Councils' case that there should have been a quantitative risk assessment. The claimant did not appear at the inquiry although his solicitor had written letters to the Secretary of State on 12th May 2000 and on 4th June 2001, in both of which the point was made that the environmental statement only contained an indicative list of waste types.

 

c) the Inspector's report

 

32. I turn then to the Inspector's report which set out in some detail the parties' cases and the material relied upon. The Inspector confirmed that he had taken the environmental statement and the further information supplied into account, together with the proposed mitigation measures. He identified five main considerations, only two of which are relevant in this case. Firstly, mine stability and other geological and hydrogeological considerations. He summarised the assessor's report relating to those matters, including the assessor's overall conclusion that there were no reasonable circumstances relating to those factors which could place in doubt the successful implementation of the proposed development. Secondly, the physical suitability of the site in terms of, inter alia, risk assessment. The Inspector concluded on that subject in paragraphs 16.38 and 16.39 as follows:

 

"The land use consequences of the risks associated with the development relate to waste escaping from drums, bags or other containers in the Shaft No. 4 compound, or escaping from containers underground and contaminating air which is then vented to the atmosphere through Shafts Nos. 3 and 5. The risk assessment identified the significant scenarios which should be taken into account and, having regard to the operational and pollution control measures, classified all except four connected to fire as having a risk rating of negligible to low.

 

16.39 I do not dispute that a quantitative risk assessment may have produced different results, albeit expressed numerically, rather than descriptively. Nevertheless, I have no reason to dispute the general findings and note that the Environment Agency has no objection in principle to the scheme. Furthermore, I would estimate that the risks are less than the equivalent operations at surface landfills where such special waste is deposited now. Therefore, my conclusion on the risk assessment from the planning point of view is that there are no indications that the risks associated with the proposal would constitute a sound reason to refuse the planning application. Overall, I see no reason to doubt the physical suitability of the site for the development proposed."

 

33. In dealing with another main consideration, namely sustainability and environmental impact of the proposal as a whole, the Inspector dealt with the issue of dust. It is relevant to a condition relating to airborne particulates (condition (vii)(a)) imposed by the Secretary of State about which the claimant raises a separate issue. It is therefore necessary to quote the Inspector's conclusion on dust at paragraphs 16.44 as follows:

 

"So far as general dust in the mine is concerned, there are monitoring points at different locations underground and I consider that a potentially harmful reduction in air quality due to vehicular emissions, road levelling and the construction of safety mounds, would be detected before it was vented from the shafts. In any event, dust already occurs due to salt mining and there is no evidence to suggest that the proposed development would cause dust levels either inside or outside the mine to rise above the relevant air quality standards. I also consider that the length of time taken for air to pass through the ventilation system would normally be sufficient to allow for any toxic fumes from a fire or dust accident to be controlled, so that the external impact of any air contamination would be insignificant. In my view, the quality of air inside the mine would be the concern of agencies such as the Health and Safety Executive and the Environment Agency, rather than be covered by the Town and Country Planning Acts."

 

34. In giving his overall conclusion in paragraphs 16.63 and 16.65, the Inspector concluded that the proposal would avoid having an unacceptable impact on, inter alia, air quality, and that any increase in air pollution would not be sufficient to justify refusing the planning application.

 

d) the Secretary of State's decision

 

35. As mentioned previously, the Secretary of State's decision dated 26th July 2002 was quashed by consent following an application by the claimant. Following consideration of the further representations that were then made, the Secretary of State issued his decision on 23rd December 2003, granting planning permission subject to conditions. I turn then to that decision letter.

 

36. In paragraph 6 of his decision letter, the Secretary of State remarked that one of the main issues on which he had sought information, and on which representations were received, concerned the types and volume of waste to be disposed of at the mine. He said that he considered that the new conditions attached to his decision letter provided sufficient clarity on that matter.

 

37. Summarising his decision in paragraph 10, he agreed with his Inspector's conclusions and accepted his recommendation that planning permission be granted. Dealing with procedural matters in paragraph 11, he stated that he had taken the environmental statement and the further information provided under Regulation 19 into account, and that he was content that they complied with the Regulations and that sufficient information had been provided for him to assess the environmental impact of the application. He noted that Minosus Limited had applied to the Environment Agency for a permit under the PPC Regulations. In paragraph 19 he agreed with the assessor's and the Inspector's conclusions relating to mine stability, geological and hydrogeological considerations.

 

38. In paragraph 22 of the decision letter, the Secretary of State stated:

 

"He also agrees with the Inspector's conclusions on risk assessment in IR 16.37-16.39, and for the reasons given in those paragraphs, the Secretary of State agrees that there are no indications that the risks associated with the proposal would constitute a sound reason to refuse planning permission. Like the Inspector, the Secretary of State sees no reason to doubt the physical suitability of the site for the development proposed."

 

39. Finally, in paragraph 28 of the decision letter, under the heading "Best Practicable Environmental Option" (BPEO), the Secretary of State stated:

 

"The Secretary of State has taken into account that an indicative list of acceptable waste types for disposal at the mine is given in the Environmental Statement but that he does not have final and complete information about the precise nature and source of the waste to be disposed of at the mine. He considers that these are matters for the Environment Agency to consider as part of the IPPC considerations. The Secretary of State has noted that the component waste types and BPEO, inter alia, will be considered by the Environment Agency (IR 9.3 and 9.4) as part of the IPPC application (IR 16.54). However, he agrees with the Inspector that the conclusions reached by both the applicant in their BPEO assessment (as set out in the Environmental Statement) and the Council are valid and that, although the applicant's BPEO assessment will require additional information for an IPPC assessment, on the facts of this particular case it is sufficient for planning purposes (IR 7.16)."

 

40. The claimant particularly takes issue with the Secretary of State's conclusion in that paragraph in so far as it relates to the planning application.

 

41. The Secretary of State, having accepted his Inspector's recommendation, granted planning permission subject to a number of conditions, three of which were the subject of challenge by the claimant, one as a freestanding challenge and two as being parasitic on the claimant's main ground of challenge.

 

42. Before dealing with those conditions, it should be noted that condition (iii) defines the area where waste may be deposited, and conditions (iv) and (v) deal respectively with the volume of the void space to be used for the deposit of waste, and an annual limit on the tonnage of waste to be imported.

 

43. The condition which is the subject of the claimant's freestanding ground of challenge is condition (vii)(a) which states:

 

"Prior to the importation of any waste to the application site the following schemes (including a timescale for implementation) shall be submitted to the County Planning Authority and agreement obtained in writing:

 

(a) a scheme for the monitoring of airborne particulates within the Mine. The scheme shall include details of the sampling points, sampling regime and sampling frequency. The scheme shall require the retention at the site office of the recorded data which shall be available for inspection by the County Planning Authority during normal working hours and a copy of the records shall be forwarded to the County Planning Authority every three months during the operational life of the site."

 

44. The conditions which are parasitic on the claimant's main ground of challenge are conditions (xii) and (xiv). Condition (xii) is particularly important because it deals with waste types. It states as follows:

 

"The only waste types which shall be deposited within the Bostock No. 5 Panel shall be solid (including granular or powder), non-flammable, non-explosive, non-volatile, non-odorous, non-deliquescent, non-radioactive and non-reactive upon exposure to air, salt or moisture within the mine. All such wastes shall be drummed or bagged to provide containment. At no time shall radioactive, liquid, explosive or flammable, vaporising or fuming, biodegradable or odorous waste be deposited within Bostock No. 5 Panel of the mine."

 

45. Condition (xiv) states:

 

"The only waste which shall be transferred underground shall be waste which has been approved for disposal at the facility by the Site Chemist. No waste material transferred underground shall subsequently be removed from the Bostock No. 5 Panel except in an emergency or with the prior written agreement of the County Planning Authority."

 

46. That completes a summary of the factual background to this case, save to say that I am told that a PPC permit was subsequently issued by the Environment Agency in August 2004 which is now subject to a separate court challenge which is not before me.

 

Authorities

 

47. Before I summarise the submissions, I should first refer to the authorities relied on by the parties because the submissions made frequent reference to them. There were six relevant authorities. I deal with them in chronological order.

 

48. In Gateshead Metropolitan Borough Council v Secretary of State for the Environment Env LR 37 the Court of Appeal was concerned with a planning permission granted for an incinerator. As incineration was then a prescribed process under the Environmental Act 1990, an authorisation was required under that Act, Her Majesty's Inspectorate of Pollution (HMIP) being the enforcing authority at that time. The planning Inspector recommended refusal of planning permission because he was concerned that the impact on air quality was not sufficiently defined. The Secretary of State disagreed because he was satisfied that, if planning permission were granted, that concern would be addressed by HMIP in the pollution control authorisation process.

 

49. The Court of Appeal noted the overlap between the two regimes of control and accepted that, if it had been clear that the discharges were bound to be unacceptable so that a refusal by HMIP of an authorisation would have been the only proper course, the Secretary of State should have refused planning permission, but that that was not the situation because at the end of the inquiry there was no clear evidence about the quality of the air in the vicinity of the site. In those circumstances, the court concluded that the issue was clearly within the competence and jurisdiction of the HMIP, and that the Secretary of State was justified in leaving that aspect to be dealt with by the HMIP.

 

50. The remaining five authorities follow in sequence: first, R v Rochdale Metropolitan Borough Council, ex parte Milne [2001] JPL 470, a decision of Sullivan J; second, R v Cornwall County Council, ex parte Hardy [2001] Env LR 473, a decision of my own; third, Smith v Secretary of State for the Environment, Transport and the Regions [2003] 2 P&CR 162, a decision of the Court of Appeal; fourth, R (on the application of Jones) v Mansfield District Council [2004] Env LR 391, also a decision of the Court of Appeal; and finally, R (on the application of Blewett) v Derbyshire County Council [2004] Env LR 569, another decision of Sullivan J.

 

51. The Milne case followed an earlier decision of Sullivan J in R v Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74, when he had quashed a bare outline planning permission for a business park which was not tied to an illustrative master plan upon which the environmental information was based.

 

52. The Milne case involved an outline planning application for a business park which incorporated additional documents, including a master plan, to which the environmental statement related. One of the grounds of challenge was that there was a failure to comply with the requirements of the Assessment Regulations then in force, in that the description of the proposed development was not sufficient because design was a reserved matter.

 

53. In paragraph 106 of his judgment, Sullivan J held that it was for the local planning authority or the Secretary of State to decide whether the environmental information was adequate. He rejected a submission that it was for the court to decide that issue as a question of primary fact. It was also for the local planning authority or the Secretary of State to decide whether a Schedule 1 or Schedule 2 development would be likely to have significant effects on the environment, subject only to review on Wednesbury grounds. In paragraph 113, he made the point that the environmental statement did not have to describe every environmental effect, only the "main effects" or "likely significant effects", otherwise the assessment would be so voluminous that there would be a danger of losing the wood for the trees. Finally, in paragraph 128 Sullivan J stated:

 

"Any major development project will be subject to a number of detailed controls, not all of them included within the planning permission. Emissions to air, discharges into water, disposal of the waste produced by the project, will all be subject to controls under legislation dealing with environmental protection. In assessing the likely significant environmental effects of a project the authors of the environmental statement and the local planning authority are entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority: see, for example, the assumptions made in respect of construction impacts, above. The same approach should be adopted to the local planning authority's power to approve reserved matters. Mistakes may occur in any system of detailed controls, but one is identifying and mitigating the 'likely significant effects', not every conceivable effect, however minor or unlikely, of a major project."

 

54. In the Hardy case, I quashed a planning permission on the ground that it was wrong to leave over to conditions a survey of bats in a mine shaft because the result of the survey might have given rise to a significant adverse effect. In those circumstances, the local planning authority could not rationally conclude that there were no significant major conservation effects until they had the data from the survey.

 

55. In the Smith case, the Court of Appeal had to consider conditions in a planning permission for the extraction of stone at a quarry and the use of the void for the disposal of controlled waste. In that case, the claimant did not challenge the environmental statement. The challenge was to conditions, primarily on the basis that they appeared to leave over the matters to which the conditions referred for subsequent negotiation between the developer and the local planning authority without involving the public. As a matter of construction, the Court of Appeal decided that the conditions could not be construed so widely as to permit renegotiation of an element of the planning permission. Having considered the cases of Tew, Milne and Hardy , Waller LJ set out four principles which those cases established. In dealing with the fourth principle he stated at paragraph 28:

 

"Fourthly, (and here as it seems to me one reaches the most difficult area), it is certainly possibly consistent with the above principles to leave the final details of, for example, a landscaping scheme to be clarified either in the context of a reserved matter where outline planning consent has been granted, or by virtue of a condition where full planning consent is being given as in the instant case."

 

56. Subsequently, having quoted paragraph 128 of the judgment of Sullivan J in the Milne case which I have already quoted, Waller LJ stated at paragraph 33:

 

"In my view it is a further important principle that when consideration is being given to the impact on the environment in the context of a planning decision, it is permissible for the decision-maker to contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives. The decision-maker is not however entitled to leave the assessment of likely impact to a future occasion simply because he contemplates that the future decision-maker will act competently. Constraints must be placed on the Planning Permission within which future details can be worked out, and the decision-maker must form a view about the likely details and their impact on the environment."

 

57. Finally, so far as Waller LJ's judgment is concerned, he dealt with an issue relating to dust, odour and vermin in paragraph 51 as follows:

 

"This point was dealt with concisely by Mr Barrett. He pointed out that there were two aspects of the development, landfill and the extraction of minerals. So far as landfill was concerned that would be the subject of the IPPC regime. The extraction of minerals is not subject to that regime. There was thus a logical basis for leaving odour and vermin to the IPPC regime and making dust the subject of a condition. If and in so far as Mr Clayton was pursuing an argument that even though vermin and odour were the subject of the IPPC regime it was still incumbent on the inspector to impose a condition, it was not pursued with any vigour. Gateshead MBC v Secretary of State for the Environment 1994 1 PLR, CA is authority for the proposition that it is open to the planning authority to leave matters within an agency such as the IPPC to that statutory body. Once again the principle identified in para [33] above applies."

 

58. At paragraph 61 Sedley LJ agreed with that conclusion.

 

59. In the Jones case the planning authority had determined that an environmental impact assessment was not required. The Court of Appeal held that the question whether a project was likely to have a significant effect on the environment was one of degree, calling for the exercise of judgment by the planning authority, although the authority had to have sufficient information about the impact of the project to be able to make an informed judgment as to whether it was likely to have a significant effect on the environment (see Dyson LJ at paragraphs 38 and 39). Also, Carnwath LJ remarked at paragraph 58 that it needed to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle race.

 

60. I turn finally, so far as the authorities are concerned, to the Blewett case, which concerned the filling of a landfill site with waste, where it was claimed inter alia that the environmental statement accompanying the planning application did not include an assessment of the potential impact of the proposed landfill on ground water which, it was said, had impermissibly been left to be assessed after planning permission had been granted. Sullivan J dismissed the challenge, remarking at paragraph 41 that it was an example of the unduly legalistic approach to the requirements of Schedule 4 of the EIA Regulations being taken by a number of claimants for judicial review to try and prevent implementation of development proposals. He also remarked that the requirement for an EIA application was not intended to obstruct development but to ensure that developments that may affect the environment were made on the basis of full information, although the Regulations were not based on an unrealistic expectation that the environmental statement would always contain "the full information". The consultation process and publicity requirement could result in identification of any deficiencies so that the planning authority had as full a picture as possible. Sullivan J then said at paragraph 41:

 

"There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between."

 

61. At paragraph 64 Sullivan J approved the leaving over of the assessment of the lining system of the cell design to the PPC authorisation process as falling squarely within the fourth principle enunciated by Waller LJ in the Smith case. In paragraphs 62 and 66 he noted that the Environment Agency had not objected and he concluded that, against that background, the planning authority was entitled to leave the remediation strategy to be dealt with by a condition.

 

62. Finally, in paragraph 68 Sullivan J said:

 

"I have dealt with it in some detail because it does illustrate a tendency on the part of claimants opposed to the grant of planning permission to focus upon deficiencies in environmental statements, as revealed by the consultation process prescribed by the Regulations, and to contend that because the document did not contain all the information required by Sch.4 it was therefore not an environmental statement and the local planning authority had no power to grant planning permission. Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived. It is important that decisions on EIA applications are made on the basis of 'full information', but the Regulations are not based on the premise that the environmental statement will necessarily contain the full information. The process is designed to identify any deficiencies in the environmental statement so that the local planning authority has the full picture, so far as it can be ascertained, when it comes to consider the 'environmental information' of which the statement will be but a part."

 

Submissions

 

63. I come next to the submissions. Mr Jay QC submitted on behalf of the claimant that the Secretary of State erred in law in granting planning permission by reference to an indicative list of wastes to be deposited at the mine because it constituted a failure to provide data in order to identify and assess the main effects of the development as required by paragraph 3 Part II of Schedule 4 of the EIA Regulations. He identified the key issue as being whether there was data logically capable of meeting that requirement, and he submitted that Minosus Limited had failed to provide such data so that the cornerstone of the whole of the environmental assessment process was lacking. Alternatively, he put the case on Wednesbury grounds, namely that no authority could reasonably conclude that there was data capable of meeting the requirement.

 

64. In elaboration of those submissions it was said that the data had to be " hard data" that could be scientifically validated. Reliance was placed on a dictionary definition of data as being "known facts or things used as the basis of inference or reasoning". It was contended that, in the circumstances of this case, there had to be a positive list of named wastes together with their quantities. It was submitted that, as a minimum requirement, the objective data should consist of the properties of the waste, a positive list of generic waste types and the particular wastes within the generic types together with their hazard ratings. It was suggested that the particular wastes and their hazard ratings should be given by reference to the European Waste Catalogue, a document which was produced pursuant to an obligation under the Hazardous Waste Directive 91/689/EEC. It was submitted on behalf of the claimant that the defect of the environmental statement was that it only dealt with a broad range of waste, rather than waste types, leaving the details of the waste types to be dealt with under the PPC permit application.

 

65. Mr Jay contended that the PPC procedure had been deployed as a surrogate for the EIA which was impermissible because the detailed material had to be made available before planning permission was granted. Instead, he suggested that the Directives and the Regulations indicated what he called "a Russian doll approach", the EIA regime being the outer layer and the PPC regime being inside, so that the PPC regime provided an additional layer of protection as belt and braces to deal with the minutiae of pollution. In support of that assertion he drew attention to Regulation 31 of the Regulations which provides that a change in the use of land for the disposal of hazardous waste involves a material change in use of the land, the point being made that it would therefore have to be dealt with under the EIA regime.

 

66. Conditions (xii) and (xiv) were also criticised on behalf of the claimant. Condition (xii) was said to be too loose and too broad in that it did not contain a positive list of waste types specified with sufficient particularity, but instead dealt with generic properties of waste, rather than waste types, expressed in a negative form. It was accepted that that followed from the approach taken in the environmental statement so that the point taken on condition (xii) stood or fell with the claimant's main point.

 

67. Condition (iv) was said to give a wide discretion to the site chemist who is only working to condition (xii). The point was also made that the " decision tree" containing criteria which could lead to the exclusion of a waste had not been made the subject of a planning condition. It was accepted, however, that the criticism of condition (xiv) depended on condition (xii), which in turn depended on the claimant's main point.

 

68. Mr Jay raised a second ground of challenge which related to condition (vii)(a) which required a monitoring scheme for airborne particulates. It was submitted that the Inspector must have thought that there was a risk from airborne particulates because otherwise he would not have imposed the condition. In those circumstances, it should have been dealt with by the Secretary of State as part of the environmental statement and should not have been left to the County Council by way of a condition. The Secretary of State had therefore erred in law in dealing with an environmental effect by way of condition. It was described by Mr Jay as a fundamental consideration, not a matter of fine detail, and was therefore to be distinguished from the conditions in the Smith case.

 

69. So far as the law is concerned, Mr Jay distinguished the Gateshead case on the basis that it concerned the regime under the Environmental Protection Act 1990 with HMIP as the enforcing authority, whereas the relevant provisions of that Act had been repealed by the Pollution Prevention and Control Act 1999, which involved a different regime. It was not a case dealing with the EIA regime or the PPC regime.

 

70. So far as the Milne case is concerned, Mr Jay relied on the fact that Sullivan J's observations on the law related to a situation before the year 2000 when the PPC Regulations came into force. The claimant would take issue with those observations applying after that date.

 

71. When dealing with the cases of Smith and Blewett , Mr Jay postulated two different hypotheses. Hypothesis 1 was where the Schedule 4 Part II information had been supplied but the EIA was nevertheless defective, although not Wednesbury unreasonable. In that situation, he conceded that it may be appropriate to leave over points of detail relating to pollution control to the PPC process. Hypothesis 2 was where the EIA was defective because the data had not been supplied, rendering the environmental statement flawed, or alternatively Wednesbury unreasonable for that reason. It was submitted that, in that situation, an unlawful EIA cannot be rendered lawful by a subsequent process under a different regime. It was submitted that, if an environmental statement was fundamentally flawed, and therefore unlawful, a subsequent PPC permit could not convert it into a lawful one. It was therefore contended that the Environment Agency had an important role to play in hypothesis 1 cases, but no role to play in hypothesis 2 cases. The Tew case and the Hardy case were said to be examples of hypothesis 2 cases.

 

72. The Smith case was said to be an hypothesis 1 case where the claimant had not attacked the environmental statement but had attacked the conditions. The leaving of odour and vermin to the PPC regime was said to be a secondary site management issue, which was very different from the fundamental objection in the present case. Mr Jay sought to dissect paragraph 33 of Waller LJ's judgment in the Smith case by submitting that the first sentence was dealing with an hypothesis 1 case, the second sentence was dealing with an hypothesis 2 case, and that in the last sentence the point being made was that the planning permission must define the parameters within which any future decision maker such as the Environment Agency had to operate.

 

73. As far as the Blewett case is concerned, Mr Jay submitted that it was an hypothesis 1 type of case which did not concern the provision of data, and where there had been deficiencies in the environmental statement of a kind which did not convert it into an unlawful document so that matters of detail could be left over to the PPC process, unlike the present case where the lack of data rendered the environmental statement fundamentally flawed.

 

Conclusions

 

74. That latter point really illustrates fairly graphically the hurdle which the claimant has to overcome to succeed in this claim. He has to show that this is one of those cases, referred to by Sullivan J in paragraph 41 of the Blewett case, where the environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations. As Sullivan J observed, those cases are likely to be few and far between.

 

75. It is relevant to note, as did Ms Lieven on behalf of the Secretary of State and Mr Price Lewis QC on behalf of Minosus Limited, that a number of responsible bodies were satisfied with the environmental statement -- namely, the Environment Agency, the County Council as waste planning authority, the Borough Council with the assistance of independent consultants (until they had a change of heart, possibly without committee authority), as well as the Inspector and the Secretary of State. That is quite an impressive list. Of course, it does not necessarily mean that they are all right. They could have all been mistaken in overlooking the point now made by the claimant, namely that the data required to identify and assess the main effects which the development is likely to have on the environment had not been provided as required by paragraph 3 of Part II of Schedule 4 of the EIA Regulations.

 

76. I intentionally summarised the main contents of the risk assessment in the environmental statement at some length because I would have thought that it was self-evident that the environmental statement contained a considerable amount of data relevant to the assessment of risk. The authorities show that, whilst the environmental statement must contain sufficient information to enable the decision maker to make an informed judgment as to whether the development is likely to have a significant effect on the environment, it is for the decision maker to decide whether the information contained in the document is sufficient to meet the definition of an environmental statement in Regulation 2 of the EIA Regulations, subject only to review on Wednesbury grounds, whilst also bearing in mind that the document does not have to contain information about all the effects, only the "main effects" or "the likely significant effects". Furthermore, the judgment as to what is a "main effect" or a "likely significant effect" is one for the decision maker, not the court, subject to normal Wednesbury principles.

 

77. The decision maker in the EIA process is concerned with the impact of the development on the use of land. The decision maker in the PPC process is concerned with the potential polluting effect of the proposed development on the environment. There can clearly be some overlap between the two regimes, but they are separate regimes which have separate functions. I am not persuaded that the "Russian doll" approach suggested by the claimant is appropriate, or that it is right to say that the PPC process has been used in this case as a surrogate for the EIA procedure.

 

78. In my view the decision maker in the planning process must set the parameters within which the likely significant effects of the development can be assessed, but within those parameters he is entitled to take into account that there are matters which can properly be left for subsequent consideration and determination, whether it be by way of a planning condition or in the PPC permit process. That, it seems to me, follows from the principle enunciated in paragraph 33 of the judgment of Waller LJ in the Smith case, which is to be read in the context of paragraph 128 of the judgment of Sullivan J in the Milne case. It follows that, provided that those parameters, or constraints as Waller LJ called them, are determined within which the future details can properly be worked out, reliance can be placed by the decision maker in the EIA process on the proper operation of those further controls.

 

79. I do not accept Mr Jay's submission that the Milne case can be distinguished on the ground that it preceded the PPC Regulations that came into force in the year 2000 because the Milne case was cited with approval in the Smith case, which postdated those Regulations, and the Smith case was in turn relied on by Sullivan J in the Blewett case. In any event, as Ms Lieven pointed out, the PPC regime is stricter than its predecessor so that it might be thought even more reasonable to rely on it.

 

80. In my view, there was sufficient information provided in the environmental statement in this case for the Secretary of State to be able to identify and assess the main effects of the development on the environment and to set the parameters within which future details could be worked out. Whilst I can understand the claimant's concern over the indicative nature of the waste types as expressed in the environmental statement, and his concern to know the specific waste types that were to be deposited in the mine, it was, in my view, perfectly reasonable for the planning authority and for the Secretary of State to take the waste types that Minosus Limited had said would be acceptable to them in order to ascertain whether they would be likely to have significant effects on the environment. It is true that those waste types are generic and not particularised into specific waste types, but there is no need for them to be so specified at the EIA stage, provided that the description of the generic waste types was sufficient to enable the decision maker to identify and assess the main effects of the development on the environment.

 

81. I see nothing wrong with the way in which the risk assessment took three waste types as being the most representative, the most reactive and the most volatile respectively. There is nothing in the Regulations which requires the data referred to in paragraph 3 of Part II of Schedule 4 of the Regulations to be "hard data" that could be scientifically validated. Data can consistent of information from many different kinds of sources. As I have said, the environmental statement contained a considerable amount of data relevant to the assessment of risk. Significantly, as Ms Lieven pointed out, no-one has suggested that any particular waste type has fallen through the net of the generic waste types considered in the risk assessment which was likely to have a significant effect on the environment. Even if anything has fallen through the net, it would still be picked up in the more detailed PPC process.

 

82. The important point is that the generic waste types which formed the basis of the planning application and which were considered in the risk assessment in the environmental statement were tied into the planning permission by condition (xii) of that permission. I see nothing wrong in describing the permitted waste types in what may be said to be negative terms such as " non-flammable", nor do I see anything wrong in that condition positively excluding certain waste types. Condition (xii) reflected Table 2.1 of the environmental assessment which reflected the basis of the planning application. The Secretary of State thereby set the parameters within which the likely significant effects were assessed and which were safeguarded by condition (xii) of the planning permission, leaving over subsequent matters of detail to be dealt with by other planning conditions and by the PPC process.

 

83. Having dealt with the source, namely the waste materials, the risk assessment considered the pathways and the receptors. I was told that the waste material would be deposited about 180 metres below ground, a very different situation from the normal surface landfill situation where there is virtually direct pathway to receptors. Furthermore, 11 different scenarios of possible disruptive events were considered.

 

84. In my view, the Secretary of State was justified in leaving over detailed consideration of waste types to the PPC process. The Secretary of State was entitled to take the view that the data that was provided was sufficient to enable the likely significant effects of the development on the environment to be identified and assessed. Both the Inspector and the Secretary of State carefully considered the matter and I do not consider that the decision could be said to be Wednesbury unreasonable, or that it could be said to be in any other way wrong in law. Although I would accept the claimant's point that the PPC process cannot be used to convert an unlawful environmental statement into a lawful one, this is not one of those few and far between cases where the environmental statement is so deficient that it cannot reasonably be described as an environmental statement.

 

85. It was accepted on behalf of the claimant that the points taken on conditions (xii) and (xiv) of the planning permission stood or fell with the main ground of challenge. The only thing that I should mention about condition (xiv) is that, although it looks on the face of it that the site chemist is being given wide powers, in fact he would be working to the constraints imposed by condition (xii) and by the PPC permit, in effect ensuring that the PPC permit was being adhered to.

 

86. Finally, there is the separate ground of challenge to condition (vii)(a), dealing with the monitoring of airborne particulates. This seems to me to be a good example of what, in the circumstances of this case, could be left to the control of another authority, in this particular instance the County Council as waste planning authority. It has to be seen in the context of the Inspector's conclusion in paragraph 16.44 of his report dealing with dust, which I quoted earlier, from which it is clear that the Inspector did not consider that aspect to be a fundamental consideration, as the claimant suggests it to be. On the contrary, he plainly considered it to be a low risk consideration in so far as it was relevant to planning considerations relating to the use of land. In those circumstances, the Secretary of State was entitled, in my view, to deal with it by way of a monitoring condition in the planning permission.

 

Overall conclusion

 

87. Having therefore considered both the main ground of challenge and the ground of challenge relating to condition (vii)(a), my conclusion is, for the reasons that I have given, that neither of the grounds of challenge succeed and that this application must therefore be dismissed.