QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HEREFORD WASTE WATCHERS LIMITED
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Timothy Jones (instructed by Hereford District Council for the Defendant)
Crown Copyright ©
Mr Justice Elias:
"A waste treatment process known as the fibre cycle process which utilises the combination of steam autoclaves run at high temperature and low pressure to sanitise and stabilise municipal solid waste."
The process apparently neutralises the putrescible element of the waste and leaves it in a state where it can be disposed of more readily.
The environmental statement.
The Planning 's Officer's Report of 2004
"The application only considers emissions to air from the two gas fired boilers (used to raise steam) and the emission from increased traffic associated with the development. It therefore presumes that emissions from the autoclaving process will be negligible, on the basis that they internally vented, as they do not result from MSW (municipal solid waste) and CI (commercial/industrial) incineration via a stack. In this respect, it states that the only emissions from the process will be of steam, which will be released on an intermittent basis when the 'treatment' has finished and the autoclave door is opened. The application then states that much of this steam will be captured by a canopy and passed through a condenser for reuse in presumably a virtually closed system.
The application then states that any fugitive emissions escaping from this recirculatory system will be retained in the building (by negative air pressure) and will ultimately pass through dust abatement plant (a 'wringing separator') and odour abatement plant (a UV/ ozonation system) before emitted to atmosphere.
From the observed 'scaled-down' trial, I would agree that the process is not combustion and would also agree that the only probable pollutant emissions will be contained within the intermittent steam release when the autoclave doors are opened. Therefore the contentious air pollutants and counter arguments normally associated with thermal waste incineration would not appear to be the case here. However, no analysed samples of the steam and its emissions have been presented with the application in support of this.
It is my view that should permission be granted the installation should be regulated by the Environment Agency under:
(i) A permit to operate a "recovery of waste" activity, bearing in mind the application suggests that the resulting autoclaved fibre may be supplied to power stations as a bio-fuel. (See section 5.5, Part A1 of the Pollution Prevention and Control Regs 2000)
Or at very least by
(ii) A waste management licence
. Under PPG 23 "Planning and Pollution", it would not normally be appropriate to propose specific conditions relating to detailed air pollution control measures that will later be regulated by conditions under specific pollution/waste control licences or permits as mentioned above. However, I understand that owing to the nature of this application, some comments would be appropriate. I therefore would offer the following:
It is of paramount importance that the building is maintained under negative pressure and the application suggests this will be achieved. However, I have reservations about this as the building is very large and a significant 'air change per hour' rate will therefore be essential if large vehicular access doors are to be left open in the working day (as the application implies). No 'air lock' HGV entrance doors are offered in the application either, which would overcome the detrimental effects of opening doors. I therefore suggest the following condition:
"All doors to the building shall be kept firmly closed when not in use."
"The general building structure and ventilation shall be designed to contain fugitive emissions and ensure containment of steam, odorous air and dust within the building. To achieve this, the ventilation system shall be suitable and sufficient, so as to maintain negative pressure at all times when processing or when steam, odours or dust are likely to be present within the building.
Note: the requirements of a permit or waste management licence are likely to include such measures and in such a case the tighter standard shall prevail."
Abatement plant has been proposed for only dust and odour, although I am not clear of the exact final discharge point to atmosphere. Both proposed abatement systems are supported with text in the appendices, but I have no experience of these designs being used elsewhere in an industrial capacity in Herefordshire. The application presumes there will be no emissions other than dust and odour from the autoclaves. I therefore offer the following:
"Prior to the development of the site, a report shall be submitted to Herefordshire Council, which specifies the levels of all pollutants (including dust and odour) within the steam/emissions from the autoclaves and process building and the predicted emission level of these from the discharge point to atmosphere.
Note: Herefordshire Council expects that this report shall be based on the analysis of captured autoclave or stack emissions."
The Planning Authority's decision.
4(g) " No development shall take place until proposals for the location and construction of the areas and means of:
….a report specifying the levels of all pollutants (including dust and odour) within the steam/emissions form the autoclaves and process building and the predicted emission level of these from the discharged point to atmosphere, based on the analysis of captured autoclave or stack emissions have been submitted to and agreed in writing by the local planning authority"
"Reason; To prevent pollution of the water environment and in the interests of the amenity of local people".
33. "The general building structure and ventilation shall be designed to contain fugitive emissions and ensure containment of steam, odorous air and dust within the building. To achieve this, the ventilation system shall be suitable and sufficient, so as to maintain negative pressure at all times when processing or when steam, odours or dust are likely to be present within the building"
34. "Prior to the discharge of process air from the building, suitable and sufficient abatement plant shall be installed to abate dust and odour (and any other pollutant identified) prior to its release to atmosphere. Details of these plant shall be submitted to Herefordshire Council for approval, and shall not be installed until they have expressed their satisfaction in writing."
For each of these conditions the reason given was "To prevent pollution of the environment and in the interests of local people and businesses."
"I said in R v North Yorkshire County Council, Ex p Brown  1 AC 397, 404 that the purpose of the Directive was "to ensure that planning decisions which may affect the environment are made on the basis of full information". This was a concise statement, adequate in its context, but which needs for present purposes to be filled out. The Directive requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure, namely that of an EIA. And an essential element in this procedure is that what the Regulations call the "environmental statement" by the developer should have been "made available to the public" and that the public should have been "given the opportunity to express an opinion" in accordance with article 6(2) of the Directive. As Advocate General Elmer said in Commission of the European Communities v Federal Republic of Germany (Case C-431/92)  ECR 1-2189, 2208-2209, paragraph 35:
"It must be emphasised that the provisions of the Directive are essentially of a procedural nature. By the inclusion of information on the environment in the consent procedure it is ensured that the environmental impact of the project shall be included in the public debate and that the decision as to whether consent is to be given shall be adopted on an appropriate basis."
The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. In a later case (Aannemersbedrif P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95)  ECR 1-5403, 5427, para 70), Advocate General Elmer made this point again:
"Where a member state's implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made the subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard.""
"The relevant planning authority … shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and they shall state in their decision that they have done so."
"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."
(a) that includes such 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."
"We have also been referred to the following decisions: R v Rochdale Metropolitan Borough Council ex parte Tew and others  3 PLR 74 and R v Rochdale Metropolitan Borough Council ex. P. Milne  JPL 470 decisions of Sullivan J ; R v Cornwall County Council ex p. Hardy  Env LR 26 a decision of Harrison J which followed Sullivan J's approach in Tew and Milne; R (on the application of Barker) v London Borough of Bromley  Env LR 631 CA in which Sullivan J's approach in Milne and Tew was approved.
Principles which those authorities establish seem to me to be the following:- First, where outline planning consent is being applied for (and Tew and Milne were cases concerned with outline planning consent, Milne being round 2 of a battle over the same development), it is at the outline consent stage that the planning authority must have sufficient details of the proposed development, sufficient details of any impact on the environment, and sufficient details of any mitigation to enable it to comply with its article 4(2) obligation.
Second, the reason for that is that once outline planning consent has been given there is effectively no going back without (at the very least) the payment of compensation. As Sullivan J said in Tew "Even if significant adverse impacts are identified at the reserved matters stage, and it is then realised that mitigation measures will be inadequate, the local planning authority is powerless to prevent the development from proceeding" [97F]. There will accordingly be no proper opportunity when the planning authority considers the matters reserved to reappraise the environmental issues. Indeed Barker held that the obligation under article 4(2) is not an obligation on the planning authority at the consideration of the reserved issue stage.
Third, the planning authority or the Inspector will have failed to comply with article 4(2) if they attempt to leave over questions which relate to the significance of the impact on the environment, and the effectiveness of any mitigation. This is so because the scheme of the regulations giving effect to the Directive is to allow the public to have an opportunity to debate the environmental issues, and because it is for those considering whether consent to the development should be given to consider the impact and mitigation after that opportunity has been given. As Harrison J put it in Hardy:-
"Mr Straker laid emphasis upon the fact that the local planning authority felt that, in imposing conditions, it had ensured that adequate powers would be available to it at the reserved matters stage. That, in my view, is no answer. At the reserved matters stage there are not the same statutory requirements for publicity and consultation. The environmental statement does not stand alone. Representations made by consultees are an important part of the environmental information which must be considered by the local planning authority before granting planning permission. Moreover, it is clear from the comprehensive list of likely significant effects in paragraph 2(c) of Schedule 3, and the reference to mitigation measures in paragraph 2(d), that it is intended that in accordance with the objectives of the Directive, the information contained in the environmental statement should be both comprehensive and systematic, so that a decision to grant planning permission is taken "in full knowledge" of the project's likely significant effects on the environment. If consideration of some of the environmental impacts and mitigation measures is effectively postponed until the reserved matters stage, the decision to grant planning permission would have been taken with only a partial rather than a "full knowledge" of the likely significant effects of the project. That is not to suggest that full knowledge requires an environmental information statement to contain every conceivable scrap of environmental information about a particular project. The Directive and the Assessment Regulations require likely significant effects to be assessed. It will be for the local planning authority to decide whether a particular effect is significant, but a decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it to a later stage would not be in accordance with the terms in Schedule 3, would conflict with the public's right to make an input into the environmental information and would therefore conflict with the underlying purpose of the Directive".
Fourth, (and here as it seems to me one reaches the most difficult area) it is certainly possible 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."
"The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously but the Secretary of State is not as a matter of law required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not in my judgment pre-determined either by the complexity of the project or by whether remedial measures are controversial though, in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration.
This approach accords with that of Sullivan J in The Queen v Rochdale MBC ex parte Milne  Env LR 406 though the point in that case was a different one. It was whether a local planning authority could properly conclude that it had sufficient information to enable it to assess the likely significant effect on the environment notwithstanding that certain details of reserved matters were lacking. As Richards J, commenting on Milne in the present case, stated (paragraph 76):
"… it was clearly contemplated that various requirements relating to mitigation measures or feeding through into mitigating measures could properly be taken into account in assessing the likely significant environmental effects of a development."
It follows that I do not accept the submission of Mr Wolfe, for the respondent, that proposed mitigating measures are to be ignored when a screening decision is made or his submission that the "proposed development" for the purposes of Regulation 2 is the proposal shorn of remedial measures incorporated into it. That would be to ignore the "actual characteristics" of some projects. He is, however, correct in his submission that devising a condition which is capable of bringing the development below the relevant threshold does not necessarily lead to a decision that an EIA is unnecessary. The test stated in Bozen requires a fuller scrutiny of the likely effects of the development project. Consideration must be given to the extent of the investigation, up to the time of decision, into the impact of the development and environmental problems arising from it, the nature of any proposed remedial measures, the extent to which those measures have been particularised, their complexity and the prospects of their successful implementation (and see Annex 10 to PPG 23 and Circular 11/95 already cited). Consideration must also be given, where appropriate, to the prospect of adverse environmental effects in the course of the development, even if of a temporary nature, as well as to the final effect of the development. All aspects of the development project must be considered; the relevant considerations may be different in a case where the central problem is the eventual effect of the development upon the environment and a case such as the present where the central problem arises from the current condition of the land. "
"Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA. If then the Secretary of State were to decline to conduct an EIA, as it seems to me he would pre-empt the very form of enquiry contemplated by the Directive and Regulations; and to that extent he would frustrate the purpose of the legislation.
"Planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it."
1. The decision whether a process or activity has significant environmental effects is a matter for the judgment of the planning authority. In making that judgment it must have sufficient details of the nature of the development, of its impact on the environment and of any mitigating measures.
2. Equally, it is for the planning authority to decide whether it has sufficient information to enable it to make the relevant judgment. It need not have all available material provided it is satisfied that it has sufficient to enable a clear decision to be reached.
3. In making that determination, the planning authority can have regard to the mitigating measures provided that they are sufficiently specific, they are available and there is no real doubt about their effectiveness. However, the more sophisticated the mitigating measures and the more controversy there is about their efficacy, the more difficult it will be for the authority to reach a decision that the effects are not likely to be significant.
4. If the authority is left uncertain as to the effects, so that it is not sure whether they may be significant or not, it should either seek further information from the developer before reaching a conclusion, or if an ES has already been provided it should require a supplement to the ES which provides the necessary data and information. It cannot seek to regulate any future potential difficulties merely by the imposition of conditions.
5. The authority cannot dispense with the need for further information on the basis that it is not sure whether or not there are significant environmental effects, but that even if there are, other enforcement agencies will ensure that steps are taken to prevent improper pollution. However, it should assume that other agencies will act competently and it should not therefore anticipate problems or difficulties on the basis that those agencies may not do so.
The grounds of challenge.
Ground 1: Did the report conclude no significant environmental effects?
Mr Dean's observations.
"The Defendant was satisfied at the date when it granted the disputed permission that it was fully aware of the likely significant environmental effects of the proposed development and that it had sufficient information in order to carry out all its obligations under the [regulations]. It remains satisfied of this. It is my firm opinion that the problems postulated by the objectors are not merely unlikely and insignificant, but wholly fanciful"
"34. In my judgment, the following propositions appear from the above authorities:
(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.
(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
(a) Whether the new reasons are consistent with the original reasons.
(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).
(d) The delay before the later reasons were put forward.
(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.
35. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons.
36. Secondly, the Court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members."
Ground 2: BPEO.
MR JUSTICE ELIAS: I hand down the judgment in terms already shown to counsel. I am grateful for the matters that have been picked up from the draft. Thank you.
MR PURCHASE: My Lord, there are just one or two points outstanding, which is whether or not permission to appeal should be granted. I appear for the claimant and my learned friend Mr Jones appears again for the defendant. There has been prepared a draft order. I do not know if your Lordship has seen a copy of that.
MR JUSTICE ELIAS: Yes.
MR PURCHASE: The first two points in that order are agreed between the parties, and it is only the third point which remains to be dealt, with so perhaps I should hand over to Mr Jones at this point who seeks permission to appeal.
MR JONES: My Lord, there would be perhaps two substantial points that I would seek to raise before the Court of Appeal.
MR JUSTICE ELIAS: Yes.
MR JONES: The first point is that the relevant issue was not whether there was a possibility of significant environmental affects caused by emissions from the premises, but whether there was a likelihood of such effects. What I intended to submit in respect of the further information was that planning conditions should properly be imposed, not merely to cover likely effects, but also to cover unlikely, even the highly unlikely. In particular, paragraph 24 of my supplementary skeleton argument concluded:
"It is perfectly proper to impose a condition to cover matters that are unlikely or even remote possibilities."
MR JUSTICE ELIAS: Yes.
MR JONES: My Lord, that is different from imposing conditions solely for monitoring purposes and in my submission is well within the test of necessity.
If that submission is accepted, that has an affect on your Lordship's conclusions on the consistency of paragraph 42 of your Lordship's judgment, particularly when it is recalled that the officer's report included the Senior Environmental Health Officer's comments from the internal scaled down trial.
"I would agree that the process is not combustion and would also agree that the only probable polluted emissions will be contained within the heat emitters released when the doors are opened."
The second point, my Lord, that I would seek to raise before the Court of Appeal is that the efficacy of the negative pressure system is a matter fully within the competence of the Environment Agency and is one of those matters that it is appropriate to assume the Agency would regulate properly.
I should make it plain, my Lord: I do not seek leave to challenge your Lordship's conclusion in respect of Mr Dean's observations on the first ground. My Lord, that is my submission.
MR JUSTICE ELIAS: Yes. Thank you very much.
MR PURCHASE: My Lord, I would simply say in response to that that the law which was applied by your Lordship in this case was relatively settled, and by reference to Court of Appeal authority, and in my submission that the outcome of this turned on its own facts. In my submission, it was quite right for your Lordship to have come to the conclusion that the defendant had to be satisfied on full information as to the likely significant environmental impact, and that on the facts, it was not. So, my Lord, in my submission leave to appeal should be refused.
MR JUSTICE ELIAS: Yes. I think I will grant leave in this case. I think it is an area where I think still there will always be developments.
MR JONES: Thank you, my Lord.
MR JUSTICE ELIAS: And I think you should be entitled to put your points before them. Thank you.