Sometimes you’ve got to do what you say you’re going to do, at least if you’re a planning inspector. Cornwall Waste Forum St Denis Branch v Secretary of State for Communities and Local Government (2011) is one of those occasions. The case concerned an appeal against refusal of permission for a waste incinerator which was sited close to two European special areas of conservation (SACs).
Objectors claimed that appropriate assessment (AA) under the Habitats Regulations was required of the impact of the proposed development’s emissions on the SACs. But there were two “competent authorities” for the purpose of AA – the Secretary of State (determining the planning appeal) and the Environment Agency (determining the environmental licence application). Which of them was to determine whether AA was necessary? For such circumstances, the Habitats Regulations helpfully provide that “nothing … requires a competent authority to assess any implications of a plan or project which would be more appropriately assessed … by another competent authority”.
The planning inquiry inspector allowed objectors to make submissions about the need for AA on the basis that the Secretary of State would decide whether it was required. However, between the conclusion of the inquiry and the Secretary of State issuing a decision, the Environment Agency issued the licence.
In granting planning permission for the incinerator, the Secretary of State accepted the inspector’s view that the Environment Agency was the appropriate competent authority to carry out AA, and in issuing the licence had determined no AA was needed.
The objectors were understandably upset, not least since the period for challenging the Environment Agency’s grant of the licence had expired before the Secretary of State reached a decision. The court determined that the objectors had had a legitimate expectation, on the basis of the inspector’s actions at the inquiry, that the matter of AA would be dealt with by the Secretary of State. It quashed the planning permission. The potential cost of the delay to the County’s taxpayers was said to be £200 million.
Is there any lesson for a developer? If AA had been carried out, it seems likely it would not have found any significant impact on the SACs (the view of both the Environment Agency and Natural England). It also seems the parties agreed there was information before the inspector to allow AA to be carried out. Perhaps a developer in those circumstances should be pushing for the small amount of additional work to be done.
On November 30, 2011