Incinerator case blurs division of planning and pollution controls

The Court of Appeal has considered Mr Justice Carnwath's recent decision in the Bolton incinerator case and suggested that the division between planning and pollution controls is no longer as clear in respect of waste management facilities as he had ruled. Although the Court upheld the planning permission for the incinerator, its judgment implies that planning authorities must be wary of simply relying on the expertise and opinion of the Environment Agency as the pollution regulator.

R v Bolton Metropolitan Borough Council ex parte Kirkham (Court of Appeal Civil Division, 5 May 1998) concerned a planning application by Greater Manchester Waste Ltd, a local authority waste disposal company, to refurbish the Bolton incinerator in order to meet new emission standards. The application was granted last May, but a local resident concerned about emissions from the plant challenged the decision by way of judicial review. Last December, Mr Justice Carnwath in the High Court dismissed the application (ENDS Report 276, pp 52-54 ), and Mr Kirkham appealed against the decision.

The legal relationship between planning and pollution controls has long been a difficult area, especially where different authorities are involved. But in the 1994 Gateshead incinerator case, the Court of Appeal held that when a planning authority was considering a planning application for an incinerator the possible impact of air emissions was a material planning consideration which it must have regard to. But the authority was also entitled to take into account the existence of regimes such as integrated pollution control (IPC) which would have to be complied with before the plant was operated (ENDS Report 233, pp 43-44 ).

Mr Justice Carnwath followed that decision and held that unless it appeared to the planning authority that the proposal would be unacceptable to the Environment Agency under IPC it was entitled to leave issues of air emissions to the Agency.

However, the Gateshead decision predated the introduction of the Waste Management Licensing Regulations 1994, which attempted to deal in more detail with the relationship of planning and pollution controls.

In particular, planning authorities were expressly given a duty to carry out their functions in accordance with specified objectives, including ensuring that waste is recovered or disposed of without endangering human health or the environment. These "Article 4" objectives were intended to reflect the provisions of the 1975 EC framework Directive on waste, but Mr Justice Carnwath was not convinced that they made a difference to the legal analysis contained in the Gateshead decision.

The Court of Appeal disagreed, and accepted the applicant's argument that the planning authority should specifically address these objectives. In response to counsel's submission that the High Court had been wrong to conclude that the 1994 regulations added nothing of substance to the Gateshead decision, Lord Justice Schiemann commented: "Put as broadly as that I would be minded to agree with him."

But proving that a local authority had failed to address these issues sufficiently to render the permission illegal was not easy. Lord Justice Schiemann noted that it was all the more difficult for third party applicants since planning authorities are not obliged to give reasons when they grant a permission. It is, however, arguable that the new ECE Convention on access to justice in environmental matters (ENDS Report 279, pp 43-44 ) will in fact require authorities to give such reasons when permitting activities specified in the Convention - and these include larger hazardous and municipal waste incinerators.

The Court of Appeal examined the material put before the planning authority and concluded that it was not possible for the applicant to show that it had not addressed the Article 4 objectives. According to the Court, the authority was still entitled to leave the details of environmental control to be dealt with under IPC, and while the system permitted a planning authority to exercise a greater control and conduct a deeper investigation than Bolton council had in fact seen fit to do, in this particular case this did not mean that it had been legally obliged to do so.

The applicant raised a number of other legal arguments, and Lord Justice Schiemann noted that these concerned more general waste policy issues. In the past, he has been concerned at an over-liberal interpretation of rules on standing, and he fired a warning shot which may require legal advisers to consider carefully the nature of the interests of applicants in relation to the arguments raised in environmental cases.

Lord Justice Schiemann accepted that, in relation to the emissions from the incinerator, a single resident living nearby clearly had a personal interest, and was entitled to bring a case. But in relation to the broader issues which counsel for the applicant argued should also be relied upon, he expressed the "gravest doubts as to whether such an argument is indeed open to a single citizen." Since the point was not challenged, however, he declined to refuse leave on that basis alone and considered the substance of the arguments.

The first of these broader arguments concerned the legal status and implications of the statutory waste management plan for Greater Manchester, which envisaged a higher priority for waste recycling than incineration with energy recovery. Under the 1994 regulations, the planning authority was obliged to discharge its functions in accordance with objectives which included "implementing so far as material any plan made under the plan-making provisions."

Although the Manchester plan was referred to in the report to Bolton's planning committee, it appeared that no specific reference was made to the preference for recycling over incineration. But the Court of Appeal agreed with the High Court that the plan was a strategic document and expressly allowed individual cases to be assessed in the light of individual circumstances. The Court was not convinced that the planning authority would have come to a different conclusion had it expressly considered the policy concerning recycling.

The applicant's next ground of appeal concerned the planning authority's alleged failure to have regard to the best practicable environmental option (BPEO). He drew attention to the Government's 1994 sustainable development strategy, which referred to the waste hierarchy and the need for this to be achieved "in a measured way governed by the principle of" BPEO, and argued that there had been no detailed costing of the options for treating different waste streams.

The Court of Appeal appears to have accepted the High Court's conclusion that the BPEO concept now constitutes a material planning consideration and is not simply confined to the IPC regime. But it also agreed with the High Court that on the facts the BPEO concept was before the planning authority, and the fact that there was no detailed calculation of figures and costs did not render the decision unlawful. According to Lord Justice Schiemann, "it does not seem to me arguable that in every case particular figures must be produced. The authority is entitled to take a view as to what is the best practicable environmental option even in the absence of figures."

Finally, the question of the Court's discretion to grant relief even it if accepted the arguments was considered. In the High Court, Mr Justice Carnwath had held that the applicant's main interests were concerned with the emissions from the proposed incinerator, and that these were adequately met by the controls under IPC.

On the wider questions, nobody else had sought to challenge the decision on the grounds of the BPEO issue, and he held that even if he had ruled in favour of the applicant on this point he would still not have granted relief. He did so on the grounds of the wider public interests involved and the fact that if the permission was quashed there was likely to be an immediate increase in the amount of waste going to landfill since there was no certainty that sufficient recycling facilities could be put in place in the foreseeable future. The Court of Appeal held that this was the correct approach.

The Kirkham decision illustrates the evidential difficulties facing applicants seeking judicial review based on the failure of authorities to take into account legally required considerations. It can hardly be said to have resolved fully the relationship between planning and pollution control, but underlines the fact that in the waste management field the position is no longer as clear as once thought. Perhaps the longer-term significance of the decisions of both courts has been to raise the legal status of the BPEO concept to something more pervasive and more in line with the original recommendations of the Royal Commission on Environmental Pollution.

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