England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		23rd May 2008

1. MR JUSTICE COLLINS: This claim came before me as what is known as a rolled-up hearing. That is to say, that permission should be considered orally and, if granted, a determination of the claim should follow. That was an order made by Cranston J. The claim itself seeks permission for judicial review of the decision of the Secretary of State for Business, Enterprise and Regulatory Reform to grant consent for the construction and operation of a 350-megawatt woodchip-fuelled thermal generating station in Port Talbot, the consent being granted under Section 36 of the Electricity Act 1989, and an additional direction that planning permission be deemed to be granted for the station pursuant to Section 90(2) of the Town and Country Planning Act 1990.
2. The claimants are two local residents, members of a group calling themselves "Port Talbot Residents Against Power Stations". They have campaigned against the construction of this proposed power station. Their objection, as formulated in the claim, relates to the potential impact on human health of the pollution that is likely to be created by the power station. The particular pollution in question is concentrations of what is known as PM₁₀, which consist of particles emitted from various sources. In fact, one of the major sources of that form of pollution is road traffic. But also there will be likely to be some emissions from the power station.
3. In addition, apart from the emissions from the station itself, there is concern that additional traffic movement will itself create further emissions. PM₁₀ has been the subject of concern in the European context and there is an EU directive which deals with the need to ensure that levels of pollution by the emission of PM₁₀ are kept to a particular limit. Port Talbot, it seems, is one of the most polluted towns, certainly in Wales, and, it is suggested, in England as well. Indeed, that is the major concern of the claimants, that any addition to the pollution is bound to have a damaging effect upon their health.
4. The relevant statutory provisions, I should deal with initially. Section 36 of the Electricity Act 1989, by subsection (1) provides:

"36... (1) Subject to subsections (2) and (4) below, a generating station shall not be constructed, extended or operated except in accordance with a consent granted by the Secretary of State."

Subsections (2) and (4) are not material for our purposes. Subsection (5) provides:

"(5) A consent under this section——

(a) may include such conditions (including conditions as to the ownership or operation of the station) as appear to the Secretary of State to be appropriate; and

(b) shall continue in force for such period as may be specified in or determined by or under the consent."

Contravention is a criminal offence.

5. The question of planning is dealt in Schedule 8 of the Act. This provides by paragraph 2(1):

"2(1) Where an application is made to the Secretary of State for his consent under section 36 or 37 of this Act, notice of the application shall be served on the relevant planning authority.

(2) Where the relevant planning authority notify the Secretary of State that they object to the application and their objection is not withdrawn, the Secretary of State——

(a) shall cause a public inquiry to be held; and

(b) before determining whether to give his consent, shall consider the objection and the report of the person who held the inquiry."

Paragraph 3 provides, and I do not need to cite its exact terms, that if there are objections by others than the planning authority, the Secretary of State may hold an inquiry, but it is his discretion to decide whether or not to do so.

6. In this case the local planning authority, that is to say the Neath Port Talbot County Borough Council, the first interested party, did not object, and so there was no requirement to hold an inquiry and the Secretary of State decided that was not necessary to hold one. In those circumstances the consent was granted and the planning permission was deemed equally to have been granted. But the grant of consent under Section 36 does not by itself enable the power station to be put into operation. There is the need for a permit in order to enable it to come into operation, and that permit is concerned with the question of pollution, among other things. In fact, the relevant provisions, and I again do not need to go into them in any detail, are the Pollution Prevention and Control (England and Wales) Regulations 2000, which are themselves made under the 1999 Act. The regulator in the context of this case is the Environment Agency Wales, known as EAW. They will have to consider what provisions they must require in the granting of a permit. Equally, they will have to consider the question whether a permit can be granted if it transpires that the emissions from the power station will lead to pollution which is in excess of the limits which are laid down by the EU directive. In fact, the regulations I have referred to are themselves the implementation into the law of Wales of the provisions of the directive.
7. The only other matter that I should refer to are the Air Quality Standards (Wales) Regulations 2007, SI 2007 No 717, which themselves are made under Section 22 of the European Communities Act in relation to measures relating to the assessment and management of ambient air quality and compliance with air quality limit values et cetera. Regulation 10 of those regulations provides:

"10.——(1) This regulation applies in respect of each zone in which concentrations of——

(a) one or more Group A pollutants are below the relevant limit values..."

PM₁₀ is a Group A pollutant. Subparagraph (2) provides:

"(2) Where sub-paragraph (a) or (b) of paragraph (1) applies, the National Assembly must, in respect of each pollutant meeting the conditions set out in those sub-paragraphs, maintain compliance with the relevant limit or target values and endeavour to preserve the lowest concentration which it considers to be compatible with sustainable development."

In the schedule of those regulations are set out the limit values for Group A pollutants and for PM₁₀ the provision is that a 24-hour value for the protection of human health should have a limit of 50 micrograms per cubic metre, not to be exceeded more than 35 times in a calendar year. In addition, an annual value for the protection of health requires a limit value of 40 micrograms per cubic metre PM₁₀ over a period of a year.

8. In addition to those provisions, there was under the Environment Act 1995, a requirement for local authorities to review the quality of air within their areas and Section 83 provided:

"(1) Where, as a result of an air quality review, it appears that any air quality standards or objectives are not being achieved, or are not likely within the relevant period to be achieved, within the area of a local authority, the local authority shall by order designate as an air quality management area (in this Part referred to as a 'designated area') any part of its area in which it appears that those standards or objectives are not being achieved, or are not likely to be achieved within the relevant period."

Such an air quality management area (AQMA) was designated by the Council in respect of an area close to the power station site. It was in fact the existence of the Corus steelworks in Port Talbot which was thought to be, and indeed was, creating the relevant pollution which required the AQMA to be set up. It was expected that the major problem could be solved by the replacement of what was thought to be a defective blast furnace. However, it appears that unfortunately, although that was replaced, it did not have the anticipated effect. Putting it broadly, it is right to indicate that the quality in the AQMA was, between the years 2002 and 2006, either just below or just above or on the limit, so far as the 24-hour limit of 50 micrograms is concerned, but at all material times the annual limit was maintained. It is not necessary for me to go into precise detail, but that is the position as a matter of fact.

9. The 1995 Act goes on, in Section 84, to require the local authority to cause an assessment to be made of the air quality and to prepare, before the expiration of the period of 12 months beginning with the coming into operation of the order (that is to say the AQMA) the report of results, and to prepare an action plan, which is called an AQAP. There was an action plan prepared in connection with the AQMA. Section 88 enables the Secretary of State to issue guidance to local authorities with respect to or in connection with the exercise of any of the powers conferred or the discharge of any of the duties imposed on those authorities by or under the relevant part of the Act. Some guidance has been issued.
10. A document known as LAQM.PG(03) gives local air quality management guidance for the purposes of Part IV of the 1995 Act. It is issued jointly by DEFRA and the National Assembly for Wales. The relevant provisions for our purposes are in 7.33 to 7.35. They provide:

"7.33 Any air quality consideration is capable of being a material planning consideration, in so far as it affects land use. Whether it actually is and how much weight should be attached to it will depend upon the facts of each individual case. Over the last three years this has been tested through the English courts in a number of cases.

7.34 Whenever a proposed development is likely to have significant air quality impacts, close co-operation between local planning authorities and those with responsibilities for air quality and pollution control will be essential. The impact on ambient air quality is likely to be particularly important, however:

• where the development is proposed within, or adjacent to, an AQMA...

• where the development, or associated traffic, is likely to result in predicted levels of air pollutants close to a breach (i.e. leaving little headroom for future developments) of the Air Quality Objectives; or

• where to grant planning permission would conflict with, or render unworkable, elements of a local authority's air quality action plan.

7.35 It is not the case that all planning applications for developments within or adjacent to AQMAs should be refused if the developments result in a deterioration of local air quality. Such an approach could sterilise development, particularly where authorities have designated their entire areas as AQMAs."

11. In addition to that guidance, there is a document which was issued in March 2000 entitled "Planning policy Wales" (PPW). That also has passages which deal with air quality and the improvement of air quality. The relevant paragraphs are 13.10.2 and 13.10.3:

"13.10.2 Planning authorities should operate on the basis that the relevant pollutant control regimes will be properly applied and enforced by other agencies. They should not seek to control through planning measures, matters that are the proper concern of the pollution control authority. These regimes are set out in the Environment Act 1995, the Environmental Protection Act 1990, the Water Resources Act 1991 and the regulatory regimes introduced by the Pollution Prevention and Control Act 1999. Each of these may have a bearing on the environmental controls imposed on the development in respect of environmental and health concerns and planning authorities will need to ensure that planning conditions do not duplicate or contradict measures more appropriately controlled under these regimes.

13.10.3 Where pollution considerations, which may be relevant to a pollution control authorisation or licence or result from the need to comply with any statutory environmental quality standards or objectives, affect the use and development of land they can be material planning considerations. This will include air quality objectives set out under Part IV of the Environment Planning Act 1995 and the local authority's action plans for Air Quality Management Areas and environmental objectives developed as part of the implementation of the European Union's Water Framework..."

12. There was reference in 7.33 to air quality being capable of being a material planning consideration. In fact, the environmental impact of planning decisions has always been a material consideration. Perhaps it is not unhelpful to refer briefly to a relatively old case now: Gateshead Metropolitan Council v Secretary of State for the Environment [1995] Env LR 37. In that case, on page 44, Glidewell LJ said this:

"Mr Mole submits, and I agree, that the extent to which discharges from a proposed plan will necessarily or probably pollute the atmosphere and/or create an unacceptable risk of harm to human beings, animals or other organisms, is a material consideration to be taken into account when deciding to grant planning permission. The Deputy Judge accepted that submission also. But the Deputy Judge said at page 17 of his judgment, and in this respect I also agree with him,

'Just as the environmental impact of such emissions is a material planning consideration, so also is the existence of a stringent regime under the EPA [Environmental Protection Act] for preventing or mitigating that impact for rendering any emissions harmless. It is too simplistic to say, "The Secretary of State cannot leave the question of pollution to the EPA".'"

Incidentally, the deputy judge in that case was Mr Jeremy Sullivan QC (as he then was). The court thus made it clear that the effect on air quality is a material consideration, but that the existence of a regime which is in place to ensure that there is a proper control on the emissions that can be made from any development, is equally a highly material consideration. And it may well be that in given cases it is entirely appropriate for the planning authority to consider that those matters can properly be left to the regulator in question.

13. I put to Mr Taylor, and he accepted, that unless the Secretary of State in a case such as this formed the view that excessive pollution could not be controlled from the development, it was appropriate to leave the matter to the regulator. Thus it would only be if, in a given case, either the material put before the Secretary of State was insufficient so that he could not form a proper view as to whether there was indeed the possibility of excessive emissions which could not be controlled, or he was persuaded that that indeed was the position, it would be appropriate to refuse planning permission. If the situation in any given case was that it appeared to him that the necessary controls could achieve the desired result, then it would be entirely appropriate for him to decide that he could grant the necessary consent, and the necessary planning permission, and leave to the regulator the control of the emissions, because the regulator not only would be able to deal with emissions from the plant itself but also any extra pollution caused by its use. This would, in the context of this case, extend to any extra pollution which might come from traffic created by the power station.
14. As a matter of fact, there is little scope for that form of extra pollution, because the evidence is that the wood would come in by ship. In fact, it has to come from millions of trees to be felled in the tropics, or somewhere where they can grow quickly, and they will not come from home-grown trees, if I may put it that way. If not by ship, then there will be a rail connection to the power station. Apart from that, there is no indication that it will create any additional traffic pollution. It will create a significant number of jobs. It will also produce a substantial amount of power, which will then be fed into the National Grid. So it has a number of obvious advantages, apart from the question of pollution.
15. The Secretary of State received a letter from EAW on 19th December 2006 concerning the power station and whether there should be approvals. In that letter this was said:

"We were disappointed that the applicant did not fully take on board our advice during the scoping exercise regarding estimation of the possible impacts in the Air Quality Management Area in the Port Talbot area. However, the Environment Agency is content, that these be dealt with through the PPC determination process.

Any PPC permit granted would include requirements for the prevention of pollution during the operation, for example the bunding of tanks, fuel interceptors, spill response plan etc.

Although, once operational, activities can be controlled through the PPC permit, it must be acknowledged that for the construction phase (which could have a detrimental effect on the environment), we are reliant upon conditions imposed by the DTI."

Then they suggest various conditions which should be contained within the planning permission to cover the construction stage, and there were a number of conditions which were imposed. I need not go into those.

16. Despite Mr Taylor's gallant efforts to suggest that this did not mean what it appears to mean, I am entirely satisfied that the Secretary of State was entitled to take the view that the Environment Agency was content in the circumstances that any problems in relation to pollution and the effect on the AQMA could properly be dealt with through what is described as the PPC determination process. That means the granting of any consent under the regulations to which I have referred.
17. There was produced by the applicants, that is the second interested party, Prenergy Power Limited, a very lengthy and detailed environmental statement. It is to be noted that in that statement there are a number of material matters. I need not go into enormous detail, but I shall just refer to one or two extracts from it. On page 107 (I give the internal page numbering of the document), this is said:

"Given the proximity of [the]... (AQMA) declared for PM₁₀, PM₁₀ is considered to be the primary emission which will influence the stack height. In line with [the]... Action Plan, new developments contributing less than 0.2% of the national air quality objective for PM₁₀ are likely to be considered 'insignificant'. Developments contributing more than 2% of the PM₁₀ objective are likely to be considered 'significant'. Developments contributing between 0.2% and 2% of the PM₁₀ objective will be considered 'on their merits'."

Those observations flow from the relevant guidance in this area and cannot be criticised as an indication of the correct approach.

18. Then on page 190 we find this:

"With reference to the PM₁₀ results presented within Table 8.16 above, operation of the Renewable Energy Plant... is predicted to contribute only 0.4% of the annual mean PM₁₀ objective and 1.28% of the 36^th highest daily mean PM₁₀ objective. Combining the Renewable Energy Plant PM₁₀ process contribution with the relevant ambient air quality levels, the Predicted Environmental Concentration is calculated to be 66.4% of the annual mean PM₁₀ objective, and 89.28% of the current 36^th highest daily mean PM₁₀ objective. Based on the assessment criteria presented within Section 8.3.3, operation of the Renewable Energy Plant is predicted to result in an insignificant impact on long term and short term PM₁₀ concentrations."

I do not expect any reader to follow the mathematics in that; it is the last sentence which is important. The last sentence is supported by the information which precedes it.

19. In addition, there was before the Secretary of State the officer's report to the local authority when it was considering whether it should object to the proposed application. In it this was said:

"Detailed information and modelling has been provided and in respect of predicted PM10s it is considered that the development would contribute 0.4% of the annual mean PM10 objective, however, within the AQMA the contribution would be 0.2% which is considered as insignificant. The process contribution to 36^th highest daily mean within the AQMA was found to be 0.64% of the air quality objective. This figure is less than the 2% regarded as significant, but more than the 0.2% of the air quality objective regarded as unlikely to be significant. Under these circumstances the development is to be considered on its own merits. The process contribution to the daily mean air quality objective is substantially less than the 2% significance level. This result is also based on worst-case scenario modelling of emissions where the plant is assumed to be running on oil, which would not be the case under normal circumstances. On this basis, there is no obvious reason to object to the proposal on grounds of air quality."

20. Mr Taylor, on behalf of the claimant, sought to argue that it was not in the circumstances appropriate for the Secretary of State to rely on the regulatory regime because the level in the AQMA was at best on the borderline of a breach of the regulations. Therefore, any further pollution would inevitably result in unlawful levels. But he was unable to contradict the matters to which I have referred, and the conclusion that any emissions would indeed be insignificant within the approach that is appropriate, and that, insofar as there was any risk that they would be excessive, that could be controlled by the regulator.
21. He suggested that consideration could not be given properly by the regulator to emissions, for example, from traffic, because it would not be possible for the regulator to impose conditions, which might have the effect of ensuring that pollution from other sources be reduced. For example, he suggested that the Secretary of State through the planning system, could impose some conditions which would have the effect of ensuring that the applicants took measures which themselves would reduce pollution from other sources. It has been suggested, for example, that they might be required to contribute to measures which would reduce pollution from the M4 motorway, which ran nearby; alternatively, that they might set up some sort of exclusion zone, such as Mr Livingstone has applied in Central London.
22. When it was suggested to Mr Taylor that those conditions would simply not be lawful, and would clearly be struck down if they were imposed through the planning process, he was constrained to accept that that was likely. When pressed, he was unable to suggest any conditions which might be appropriate, and which would or could have the effect which he sought to suggest ought to be applied. It seems to me that although Mr Taylor produced elaborate arguments and approached the matter in a number of different ways, the key to this is that the Secretary of State was entitled to take the view on the material before him, and based on the evidence to which I have already referred, that the question of controlling pollution could properly, in the circumstances, be left to the regulator. Indeed, he was entitled, from the letter of December 2006, to which I have already referred, to take the view that EAW, the regulator, was content that that was the proper means whereby this could be achieved.
23. Mr Taylor argued further that the Secretary of State had not given sufficient reasons. It is necessary briefly to refer to the reasons which the Secretary of State gave in his decision of 20th November 2007. The Secretary of State referred in that to the relevant objections, including those relating to pollution. He dealt with them in paragraphs 3.7 and 3.8 of the decision, which I shall read:

"3.7 The choice of location is a commercial matter for the applicant, subject to meeting environmental and planning considerations. The Secretary of State considers the question is not whether there should be a limit on a particular type of development in an area, but whether the environmental effect of any new development when considered in combination with existing or planned developments would have an adverse effect. The environmental impact of proposals is something that is taken into account in the process, where the local planning authority, statutory bodies such as EAW and the local community's views can be given serious consideration. He does not consider it would be right therefore to prejudice those views on a particular proposal by having a moratorium in the way suggested."

That deals with a slightly different issue, but then at 3.8:

"3.8 The Secretary of State notes that EAW has not objected to the application subject to the imposition of conditions covering prevention of pollution during the construction stage. Planning Conditions (44) and (45) also exercise control of air pollution monitoring and Planning Condition (42) exercises control over the suppression of dust from the fuel stockpiles and waste ash. The Company will also need to obtain a separate Integrated Pollution, Prevention and Control (IPPC) permit from EAW, who control emissions to air, water and land and will ensure that there will be no significant adverse effect on the health of local residents. While the Secretary of State acknowledges that there is concern over the impact on health in the locality, he is satisfied that health concerns can be adequately addressed and that there is (sic) no health grounds for refusing the grant of planning permission."

24. Mr Taylor criticises those. He sets out in his skeleton argument some 10 detailed matters that he submits ought to have been contained in the reasons, and he suggests that the effect of what the Secretary of State has said is that he is simply asserting that there will be no health consequences. That, as it seems to me, is an attempt to suggest that what is said by the Secretary of State does not meet the concerns. The reality is that the reasons make plain that the Secretary of State is taking the view that the pollution control can properly be carried out by the regulator. That, it seems to me, is an entirely appropriate way of dealing with the matter, in the circumstances of this case.
25. Mr Taylor sought to suggest that it was not possible to know whether the Secretary of State was saying that the limits would not be exceeded, or whether the contribution was significant, or what was the basis upon which it was appropriate to make use of the regulator. In my view, it is quite impossible to suggest that more was needed. The reader would know perfectly well from what the Secretary of State said that he was taking the clear view that the controls on pollution and ensuring that pollution would not exceed the necessary limits were matters which could properly be left to the regulator. That was, in my judgment, entirely sufficient.
26. Accordingly, I am satisfied that this is a claim which could not conceivably succeed. But there is a further reason why it would not be appropriate to grant permission, and that is delay. The decision was made on 20th November 2007. The claimants were made aware of it at the time. Indeed, there was a move by one of them, through a Member of Parliament, to seek to raise objections, and the applicants indicated that they were willing, indeed they were anxious, that there should be a meeting set up in which the whole matter could be explained. Unfortunately, the claimant did not choose to follow up that suggestion. It was not until 6th February 2008 that a letter, which purported to be a pre-action protocol letter, was written. That was very few days before the 3-month limit for bringing judicial review proceedings was reached.
27. In fact, there was no time given to the defendant, or to either of the interested parties, to deal with the pre-action protocol letter because the claim was lodged on 15th February 2008. The rule, as is well known, requires that judicial review claims are made promptly and, in any event, within 3 months, although there is a discretion in the court to extend time in an appropriate case.
28. The challenges to planning permissions which have been granted, at one time were considered to fall into a special category, and by analogy with the 6-week limit in relation to proceedings under Section 288, the view was taken that there ought to be a 6-week limit for claims of this nature. That was disapproved by the House of Lords in Birkett, and the normal rules apply. But if a recipient of planning permission is entitled, unless he has some warning that there may be no challenge, to act upon that permission. Accordingly, it of the utmost importance, where there is the possibility of challenge, that the fact of that possibility is drawn to the attention of the recipient of the planning permission at the earliest possible opportunity. Otherwise, he may well incur expense in implementing the permission which he has received, and which he has no reason to believe will be likely to be challenged. So it is in this case.
29. I have evidence from a director of Prenergy that they have indeed, as a result of the belief that there was going to be no challenge to the permission, incurred considerable expense. The amount in question is over £400,000. They make it clear that, had they been aware that a challenge might be made, then they could have taken steps which would have avoided that amount of expense. Accordingly, there is substantial prejudice resulting from the delay.
30. Mr Taylor sought to argue that that prejudice could not be assumed, because they still had to obtain the permit, and so they might well not have been able, in the long run, to operate the power station. But the evidence is clear that they did incur this expense, and they could have taken steps to avoid it, had they been aware of the possibility of challenge. Thus, although the normal rules apply, and the requirement of promptness (3 months being the limit) is the approach, it is necessary to look at the whole picture. If a claimant who seeks to challenge the grant of planning permission does not give that indication at an early stage, but delays until towards the end of what is regarded as the given period of 3 months, then he may well find himself meeting a prejudice argument, and the court saying that the claim was not made promptly. That is the position here. I am entirely satisfied that this claim was not made promptly, and thus was not made in accordance with the rule. In addition to that, even if the rule were not applicable against the claimant, there is prejudice within the meaning of Section 31(6) of the Supreme Court Act 1981. It follows that on that ground, too, it would be appropriate to refuse permission. That is the decision that I have reached, that the right order in this case is to refuse permission, and thus the claim fails.
31. I dealt, yesterday, with the question of costs, indicating why I was ordering that the claimants pay £10,000 by way of costs to both the defendant and the second interested party, Prenergy. I was satisfied that this was an appropriate case to make a double order, if only because, and indeed Mr Taylor accepted this, Prenergy were entitled to appear and brought themselves within Bolton, in that they were able to produce evidence relevant to, and to argue, the delay point. This was a matter which the Secretary of State was not directly concerned with.
32. I limited the amount that was payable, having regard to the fact that I was refusing permission. Nonetheless, it seemed to me again that, this being a case where the judge had directed a rolled-up hearing, and so requiring the attendance of the defendants and Prenergy, it was an appropriate case to award costs not only of the acknowledgment of service, but also to cover some part of the attendance. I also bore in mind that the claimants informed me that the costs incurred by them for their representatives amounted to some £25,000, which puts in context, to some extent, the claims and the amounts claimed by the defendant and by the interested party. I have sympathy with the claimants. They were obviously and understandably concerned about the possible effect on their health, and they took advice. They received advice that this was a claim which could be pursued and they acted upon it. It was not a case of plunging into litigation without taking the appropriate advice. Unfortunately, as I have decided, that advice was misguided and wrong, and there was indeed no claim.
33. Finally, I refused any leave to appeal, assuming leave to appeal is a matter which is appropriate in the circumstances. What I also did was to indicate the that time for pursuing an appeal, if they wished to do so, would run from the receipt of the corrected transcript, and accordingly I would ask that there be an expedited transcript.
34. MISS LIEVEN: I am very grateful.