QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
B e f o r e :
|THE QUEEN ON THE APPLICATION OF VETTERLEIN|
|HAMPSHIRE COUNTY COUNCIL|
|HAMPSHIRE WASTE SERVICES LTD|
|(Interested First Party)|
|THE SECRETARY OF STATE FOR THE ENVIRONMENT TRANSPORT AND THE REGIONS|
|(Interested Second Party)|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR TIMOTHY STRAKER QC and MR MAURICE SHERIDAN (instructed by HAMPSHIRE COUNTY COUNCIL LEGAL DEPARTMENT, WINCHESTER SO23 8UJ) appeared on behalf of the Defendant.
MR LIONEL READ QC and STEPHEN TROMINS (instructed by THEODORE GODDARD SOLICITORS) appeared on behalf of the First Interested Party.
MR TIMOTHY CORNER (Instructed by the Treasury Solicitor) appeared on behalf of the Second Interested Party.
Crown Copyright ©
MR JUSTICE SULLIVAN:
The Claimants' Grounds of Challenge:
"The background levels were already around and in excess of the air quality guidelines. The incinerator was a significant further contributor to pollution, which was going to make matters even worse. Even if the incinerator was not "leading to" breach of the standards, because of existing levels, that did not mean there would be no breach. Nor did it mean that the breach would not be made worse because of the incinerator. And it certainly did not follow that there was no risk to health. The air quality standards, designed to reflect public safety, were exceeded (ie breached)."
"I have focused on one issue, namely nitrogen dioxide and the air quality standard. There are other points which could be made about other aspects, and would call for scrutiny were there some forum for public scrutiny of the evidence. However, I have stuck to an outline of what I consider to be the strongest point, appreciating that if this does not assist the Court others will not do so."
"The combustion process will produce emissions to air. Regulation of emissions is through the IPC authorisation administered by the Environment Agency. The plant would be designed not only to meet existing UK and European standards but also to meet more stringent draft European standards. All relevant compounds were assessed. The findings showed that concentration of all emissions would be a small percentage of background levels and that total concentrations, including background levels, would not exceed the air quality standards set by the UK Government or the World Health Organisation. The assessment concluded that even applying assumptions of maximum exposure to the proposed incinerator's emissions and associated deposition of metals and dioxins there was no significant increase in health risk." (Underlining added).
"4.9 The application site has little ecological interest, and the air emissions from the facility will make a very small contribution to the annual mean concentrations of key pollutants.
4.12 In conclusion, the ES has not identified any significant adverse effects. There are some slight changes to the local environment during construction, which will be short term. In the long term the operational effects would be slight or negligible...."
"Southampton and South West Hampshire Health Authority comments that the Environmental Report appears to give a carefully considered and sound assessment of the direct effects of the energy recovery facility on the environment. The conclusion that there will be negligible health effects seems well founded, based on existing knowledge and the safety criteria quoted in the report."
"9.29 Concern has been raised about pollution and health issues associated with incineration. In particular, it is alleged that minute quantities of certain pollutants represent a threat to health in the long term, particularly to the more vulnerable.
9.30 Regulation of the operation of the plant and its emissions to air, water and land has to be in accordance with the necessary European and UK standards. This is the responsibility of the Environment Agent through the IPC procedure. HWS has received an IPC authorisation for the operation of the proposed incinerator and the Agency does not object to the planning application.
9.31 However, the County Council has to take a view on this issue, particularly because it is raised as an objection to the planning application, and cannot rely solely on the views of the Environment Agency.
9.32 Therefore, the Southampton and South West Hants Health Authority and New Forest District Council's and Southampton City Council's Environmental Health Officers were consulted. The conclusion of these consultees is that there is no evidence that the past operation of an incinerator at Marchwood has led to an increase in health problems for the local population with respect to cancer, asthma or other respiratory diseases. Also, the background monitoring, dispersion modelling and emission standards included in the planning application and ES are appropriate and would not lead to a breach of air quality guidelines and standards, and so any risk to health would be negligible."
"9.33 Given this evidence it should be noted that in line with the case R V Newbury District Council, ex parte Blackwell 1997 the County Council would be in a difficult position to refuse planning permission on air quality/health grounds. This is because the principal regulating authority has no objection, and there is no better and more authoritative technical evidence to the contrary."
Other Material Considerations
"As set out in this report, the County Council does not accept that there are any general health effects resulting from this development. There may be an effect on certain very vulnerable individuals with existing health problems. There may also be an effect on individuals who are particularly anxious concerning the health risks associated with incineration. While it is believed these fears are unjustified and the number of people concerned likely to be small, this does need to be taken into account. However, it is considered that the public benefits of the development outweigh these potential effects on individuals."
"The Government considers that emissions from such plants are strictly regulated and that environment protection standards are sufficient to protect the environment and public health. It is considered that the emissions and operation of the proposed plant are capable of meeting existing, and more stringent proposed, European and UK standards. Consequently, there would not be an objection on the grounds of a significant health risk."
"... total concentrations, including background levels, would not exceed the air quality standards set by the UK Government or the World Health Organisation."
"8.1 Emissions to the air are a consequence of the combustion process for the ERF; the type and quantity of substances being emitted varies depending on the materials being burnt. The quantities at which pollutants may be emitted from the ERF is regulated by the Integrated Pollution Control authorisation...and must comply with the limits set by UK and European standards. This plant will be designed to meet not only the existing standards but also future standards which the Europe council is currently drafting. This is achieved through the adoption of controlled incineration and through the provision of the high performance technology for the clean-up of the exhaust gasses prior to emission.
8.2 An extensive programme of air quality monitoring (covering a 15 month period) was undertaken by HWS around the site of the ERF and at other sites in Hampshire. The purpose of this was to determine how air quality in general compared to existing air quality standards to assess whether the site would be suitable for the levels of emission associated with the ERF. The findings showed that the air quality at the site would not preclude the construction of waste management facilities of this type."
"8.3 Modelling of the dispersion of the emissions from the chimneys was undertaken using computer models approved by the Environment Agency to determine what the ground level concentrations of the gasses would be under worst case scenarios. All relevant compounds were assessed including oxides of nitrogen, sulphur dioxide, particulate matter, carbon monoxide, hydrogen chloride, certain metals and dioxins and furans. The findings showed that the resultant concentrations of all substances would be a very small percentage of background levels and that the total concentrations of most substances, when background levels are included, would not exceed the air quality standards set by the UK Government and the World Health Organisation and would therefore not pose any significant risk to health."
"The data collected as part of the HWS background air quality programme, in conjunction with routine measurements made by DETR sponsored networks in Hampshire, indicate that existing air quality at and around the proposed Integra South West ERF site is such that air quality standards are not generally exceeded or approached. Data measured in the centre of the Southampton indicates that air quality targets for the year 2005 are not currently being met, but this is not an unusual situation for city centres in the UK.
Importantly, in the context of an assessment of an ERF, concentrations of dioxins and metals in air, and also in the soil and grass, are comparable with what is known in similar locations in the UK.
The available evidence suggests that the ERF is not proposed for an area with air quality problems of a scale which preclude waste management facilities of this type."
"The principal sources of emissions to atmosphere from the normal operation of the proposed ERF will be from the main 65 metre stacks and will include carbon dioxide, carbon monoxide, water vapour, oxides of nitrogen, sulphur dioxide, particulate matter, trace metals and organic compounds.
In addition, there will be some vehicle movements associated with the operation of the proposed ERF.
7.6.3 Emissions from the Main Sacks.
The most critical pollutant with respect to the NAQS air quality objectives and EU Directives is nitrogen dioxide. The NAQS (published in March 1997 and revised in January 2000) includes two objectives for NO2, a 1-hour mean (which allows 18 exceedances per year and is therefore equivalent to the 99.8th percentile) and an annual mean.
Nitrogen dioxide is considered separately as the key pollutant, for short term (the maximum of 99.8th percentile 1-hour mean) and long term effects (with reference to the annual mean)."
"NO2 annual mean background concentrations ranged from 24-36 ug m-3 at the background diffusion tube monitoring sites in Southampton (1995-96). At the HWS monitoring sites, the estimated annual mean concentrations from the monitoring ranged from 23-50 ug m-3. Given the year-to-year variability of the data and the small relative impact of the ERF on the annual mean concentrations it is unlikely that the emissions from the ERF would produce any measurable effect on annual mean ground level concentrations or lead to guidelines or limits to be exceeded."
"As with any combustion process of this kind, there will be emissions to atmosphere of a range of pollutants. It is the responsibility of the developer to demonstrate that the emissions control technology and facility design including stack height are sufficient to render these pollutants harmless at ground level. To assess this effect quantitatively, it is necessary to understand the quality of the air into which the releases are to be made and how the releases disperse and dilute in the atmosphere.
Ambient air quality in the region of the proposed site has been examined. The data collected as part of the HWS background air monitoring programme, in conjunction with routine measurements made by DETR sponsored networks in Southampton, indicate that existing air quality at and around the site is such that air quality standards are not generally exceeded or approached. The semi-urban location of this site means that it is subject to influences from traffic emissions. Consequently, concentrations of pollutants are relatively high when compared to rural background concentrations, particularly for those pollutants associated with vehicles, (eg NO2).
Importantly, in the context of an assessment of an ERF, concentrations of dioxins and metals in air, and also in the soil and grass, are comparable with what is known of similar locations in the UK. The available evidence suggests that the proposed ERF is not proposed for an area with air quality problems of a scale which preclude waste management facilities of this type."
"In conclusion, the emissions from the proposed ERF will have a small impact on the local air quality. Ground level concentrations resulting from emissions from the proposed facility are unlikely to lead to breaches of ambient air quality standards and guidelines or cause a risk to health. A stack height of 65m for the main stacks is sufficient to ensure adequate dispersion of all pollutants."
"The annual mean concentrations of nitrogen dioxide have been exceeded in some years at the the AUN site and all local authority sites, except the background sites in Southampton (on Pennine Road and Landseer Road). The National Air Quality Strategy contains predictions that the annual mean NO2 concentrations will decrease to 19-29 ug m-3 at the Southampton AUN site by 2005. These predicted reductions suggests that long-term NO2 NAQS guidelines are likely to be achieved by the deadline of 31/12/2005."
"Comparison has also been made of the four week means to the annual average guideline, this gives a useful indication of magnitude but may not necessarily indicate exceedance or compliance. The four week concentration exceed the NAQS annual average objective at the SCCC site. Monitoring at the SCCC site was undertaken during the winter months (January and February) when concentrations of nitrogen dioxide are expected to be higher (due to lower atmospheric mixing heights in the winter). Therefore, the measurements made at SCCC during the four week period would not be representative of measurements made throughout the year."
"There is widespread exceedance of the 40 [annual mean] in the Redbridge/Millbrook area, the Avenue, City Centre, Bitterne Road and in the vicinity of the M27."
"The long running NO2 [nitrogen dioxide] Diffusion Tube survey at four sites in Southampton still show the kerbside site well above the annual mean standard, increasing slightly from 1997 to 1999. This kerbside location is residential and the NO2 diffusion tube is only 2 metres from the edge of a residential house, which faces on to the main road."
"It is only in wholly exceptional circumstances that the risk of a future violation may nevertheless confer the status of "victim" on an individual applicant, and only then if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally: mere suspicions or conjectures are not enough in that respect.
In the instant case, the Court considers that the mere mention of the pollution risks inherent in the production of steel from scrap iron is not enough to justify the applicants' assertion that they are the victims of a violation of the Convention. They must be able to assert, arguably and in a detailed manner, that for lack of adequate precautions taken by the authorities the degree of probability of the occurrence of damage is such that it can be considered to constitute a violation, on condition that the consequences of the act complained of are not too remote...."
(1) There is evidence of existing breaches of the WHO guideline for nitrogen dioxide near busy roads. Those include busy roads running through residential areas.
(2) The levels of nitrogen dioxide at the claimants' homes are likely to be compliant with the guideline given that the claimants' homes are at some, albeit not a very great distance, from busy roads.
(3) There will be a further deterioration due to emissions from the incinerator in some residential areas in the city of up to .5. At the claimants' homes the addition is likely to be of the order of .1 to .2.
(4) On the basis of the material presently available the claimants do not contend that this increase would cause the WHO limit of 40 to be exceeded at their homes.
"Under the Court's case law, for Article 6(1) in its "civil" limb to be applicable, there must be a "dispute" over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The "dispute" must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6(1) into play."
"The Court reiterates that, according to the principles enunciated in its case law, it has first to ascertain whether there was a dispute (contestation) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question."
MR STRAKER QC: In those circumstances may I first just mention one matter?
MR JUSTICE SULLIVAN: Yes.
MR STRAKER QC: Against the possibility that your Lordship is subsequently asked to approve the transcript.
MR JUSTICE SULLIVAN: Yes, of course. Yes, please do.
MR STRAKER QC: It relates to the question that your Lordship asked of me yesterday and hence to an observation made about five minutes or so into your Lordship's judgment.
MR JUSTICE SULLIVAN: Yes.
MR STRAKER QC: It is the availability to the public of the papers for the hearing, and your Lordship referred to three working days available.
MR JUSTICE SULLIVAN: Yes.
MR STRAKER QC: Your Lordship may care to consider inserting the words "at least before three working days" because in some cases the material would have been available to the public in advance of those three working days. As I say I simply mention the matter for your Lordship's consideration, nothing in particular turns upon it, but I thought it right to make that observation.
MR JUSTICE SULLIVAN: Thank you. I am not sure that I shall bother, no discourtesy intended, but I think Mr Fordham told me that the meeting was on the Monday and he told me that the claimants got it on the Wednesday before.
MR FORDHAM: It was the other way around; he got it on the Monday for a meeting that was on the Wednesday, so it was two days.
MR JUSTICE SULLIVAN: I was puzzled by that actually, because if one looks at the face of the report, I have filleted my copy of the bundle, it said on it "Monday 11th December", yes, date and time "Monday 11th December 2000 at 10.30 am". Now I have not gone back and checked my diary for 2000 but I assume that is right.
MR STRAKER QC: My Lord, yes. Well, my Lord, it is not a matter which I need to press, in any sense of the word.
MR JUSTICE SULLIVAN: No, thank you very much.
MR FORDHAM: Leave it as it is, my Lord. I am told he only had it two days before, but there is no need----
MR JUSTICE SULLIVAN: I do not think there is any difference then, is there? Well, not that much, not in terms of working days anyway. Right.
MR STRAKER QC: My Lord, that having been disposed of, the other matter which I would raise would be this: I would respectful ask for an order for costs against the claimants in respect of this matter to include the costs reserved by Harrison J. The position here is that the claimants received the benefit of public support for this litigation and so in those circumstances I would ask your Lordship to make an order for costs, allowing the receiving party, that is to say Hampshire, to make an application to determine the costs that the paying party should pay, the costs to be assessed and that application to be made in due time.
MR JUSTICE SULLIVAN: I am sorry, I am not sure I am following the end of it. The benefit of public support? Frankly, I simply have not looked at, obviously, any questions of costs or who is supported and so forth, can you just help me about that? What do you mean?
MR STRAKER QC: Well, my Lord, they have a certificate entitling them to what once would have been called legal aid and is now called community legal support.
MR JUSTICE SULLIVAN: Right.
MR STRAKER QC: So the consequence of that is that in order for costs to be recovered from them it has to be decided what would be a reasonable amount for the paying party to pay, and that depends upon consideration of all the circumstances, including financial resources of all the parties to the proceedings and their conduct in connection with the dispute. That, of course, is information which your Lordship does not have.
MR JUSTICE SULLIVAN: No.
MR STRAKER QC: And so reading from the notes to the Civil Court Practice the usual course, it is suggested, will be for the court simply to make an order for costs under the relevant section, which is section 11 of the Access to Justice Act, and allow the receiving party, that is to say Hampshire in this case, to make an application to determine the costs that the paying party should pay.
MR JUSTICE SULLIVAN: Can you just give me the reference in the White Book?
MR STRAKER QC: I am reading, in fact, from the Civil Court Practice in the Green Book, page 593, but there will be a similar provision – oh, Mr Corner shakes his head negatively, but that is the position, my Lord, as taken from the rules. I can pass in the extract for your Lordship.
MR JUSTICE SULLIVAN: Yes, thank you.
MR STRAKER QC: It is section 11 of the Access to Justice Act.
MR JUSTICE SULLIVAN: Yes. Right. Thank you. I understand that application, yes.
MR STRAKER QC: I am much obliged.
MR JUSTICE SULLIVAN: Let us see if there are any other applications made against you, Mr Fordham, and then you can deal with them all on a rolled out basis.
MR CORNER: My Lord, I have an application on behalf of the Secretary of State. As you said in your judgment we were invited, pursuant to the order of Harrison J, to attend, given that in the proceedings a declaration of incompatibility was asked for. My Lord, it is, of course, right that in the skeleton argument, post the Alconbury decision in the House of Lords, it is stated by the claimants that there is no question of declaration of incompatibility. My Lord, however, I would say this that it was wholly reasonable, in my submission, for the Secretary of State to come and seek to assist your Lordship having regard to the submissions which were, in fact, made, in that even if not strictly asking for a declaration of incompatibility, and it was not entirely clear, even if not, however, they were seeking to make suggestions as to how a local authority should conduct its determination of planning applications. My Lord, the suggestion of a public inquiry really would make radical changes which are not provided for in the current legislation to the administration of the Town and Country Planning system, for which the Secretary of State is responsible.
MR JUSTICE SULLIVAN: Yes. Thank you, Mr Corner.
MR CORNER: Thank you.
MR JUSTICE SULLIVAN: You are keeping quiet, are you, Mr Tromins?
MR TROMINS: My Lord, I do not propose to make any application for costs for Hampshire Waste Services.
MR JUSTICE SULLIVAN: Yes, thank you. Mr Fordham, I do not need to trouble you about the Secretary of State's application for costs.
MR FORDHAM: My Lord, I do not resist that the defendant should have an order for costs on the usual legal aid terms. I am afraid you are one step ahead of me in having both the page reference and understanding the applications being made.
MR JUSTICE SULLIVAN: Effectively, you are asking for the usual order and you would be embarrassed if I said to you what is the usual order.
MR FORDHAM: One remembers the times of the usual compulsory order in the Winding up Court.
MR JUSTICE SULLIVAN: Yes.
MR FORDHAM: And of living in dread of that question.
MR JUSTICE SULLIVAN: Yes, terrible.
MR FORDHAM: But, my Lord, if it is an order sought on the usual legal aid terms then I do not resist your Lordship making that order; if it is some special application for some special order, then I am not in a position yet to understand that application or respond to it.
MR JUSTICE SULLIVAN: Yes.
MR FORDHAM: We all think it is the usual legal aid term, my Lord.
MR JUSTICE SULLIVAN: Right. Yes. I am not going to reveal my ignorance by exploring the matter any further. Thank you very much.
MR FORDHAM: May I ask for a legal aid taxation of the claimants' costs; I am sure that is the wrong phrase now, but the equivalent.
MR JUSTICE SULLIVAN: Yes.
MR FORDHAM: My Lord, I make no application for permission to appeal.
MR JUSTICE SULLIVAN: Thank you.
MR FORDHAM: But I would ask your Lordship, if you would please, to direct that there be an expedited transcript in this case, that is because, not surprisingly, post Alconbury there are a number of article 6 type cases and it will be of interest for people in those cases to see what your Lordship did say and what your Lordship did not say in relation to that issue and, as I understand it, a speedy transcript can be provided if your Lordship simply directs that that be appropriate.
MR JUSTICE SULLIVAN: It can, yes. I have to say I wonder how this decision which turns so much on the facts will be of interest beyond the fact of the four columns of this case but I see Mr Corner rising, possibly to support you, I do not know.
MR CORNER: I am specifically instructed on behalf of the Secretary of State to support that submission by my learned friend.
MR FORDHAM: I would say precisely so that we can see what your Lordship has decided. It may be that this case is going to be relevant in other cases and it is going to be necessary to see what your Lordship has done. I would agree that your Lordship has decided this case entirely on the facts.
MR JUSTICE SULLIVAN: Yes, I am not aware of any plans – maybe the mere fact that there are not any might be of interest I suppose.
MR FORDHAM: I did not want to put it that way, but would your Lordship make a direction.
MR JUSTICE SULLIVAN: Right. Then as I have indicated permission granted to apply for judicial review, but the substantive application is dismissed. The claimants to pay the County Council's costs, subject to the usual legal aid order. The claimants to have whatever is the modern equivalent, and no doubt the associate will know, of legal aid taxation. There being no application for permission to appeal, the two remaining things are expedited transcript and the Secretary of State application for costs. I am happy to order an expedited transcript. I do not think we mean by that super expedition, but get it to me as fast as possible, when I say super expedition there are some cases when people want to rush off to the Court of Appeal tomorrow, so it is not that sort of expedition. So far as the Secretary of State's application for costs is concerned, I quite understand that it may well be said it was appropriate for the Secretary of State to appear; on the other hand, one has to keep these things in proportion following Alconbury it must have been pretty clear that the writing was on the wall for any sort of certificate of any sort of declaration of incompatibility. It was plain in the claimants' skeleton that one was not going to be sought and it does seem to me that the remaining issues under article 8 and 6, although it was very helpful to have Mr Corner, could have been dealt with by the County Council. So I think the Secretary of State, the new Secretary of State, will just have to put it down to the burdens of high office. Right. Anything else?
MR FORDHAM: My Lord, no.
MR JUSTICE SULLIVAN: Thank you all very much indeed. Thank you, Mr Read, as well.