Incinerator tests interface between planning and IPC

The relationship between planning controls and specific pollution regulation has long been a matter of some legal complexity. Last year's draft Planning Policy Guidance note from the Department of the Environment included the cryptic observation that "the dividing line between pollution and planning controls is not always clear cut" - and anyone looking for simple black and white rules of separation will not find them in the High Court's latest ruling on the subject. Nevertheless, the judgement in Gateshead Metropolitan Borough Council v Secretary of State for the Environment and Northumbrian Water Group (Queen's Bench Division, High Court, 29 September 1993) provides a valuable contemporary analysis of principles to be applied.

The case concerned a proposed Northumbrian Water clinical waste incinerator near Gateshead. A local planning inquiry was held in 1991 and the Inspector recommended a refusal of outline planning permission. The recommendation was rejected by the Secretary of State, and it was his decision that was challenged by the planning authority.

In his report, the Inspector had concluded that while the incinerator could be built to comply with various emission standards the impact on air quality and agriculture in what was a semi-rural location was insufficiently defined, and that public concern over potential pollution could not be allayed sufficiently to make the site acceptable.

In overturning his recommendation, the Secretary of State noted that in addition to planning consent the incinerator would require an integrated pollution control (IPC) authorisation from HM Inspectorate of Pollution (HMIP) under the Environmental Protection Act 1990. He considered that the plant could be designed to meet the standards likely to be required by HMIP, and essentially concluded that the pollution concerns would be addressed satisfactorily under IPC.

Jeremy Sullivan QC, a leading planning silk and sitting as a Deputy Judge, began with the statutory provision under the Town and Country Planning Act that in making a planning decision the Secretary of State must have regard to the development plan and other material considerations. "It is clear beyond reasonable doubt that the environmental impact of emissions to atmosphere is a material consideration at the planning stage."

However, he also noted that the existence of a pollution control regime under the 1990 Act was a material consideration as well. In his view, where two statutory controls overlapped, it was unhelpful to try to define where one regime ended and the other began in terms of an abstract principle, as there would be a real danger of losing sight of the obligation to consider each case on its individual merits. At one extreme, evidence at the planning stage might indicate that potential pollution problems were substantially overcome and the remaining details could be left to the IPC process. At the other, evidence of environmental problems might be so damning that planning permission could be refused, as there was no point in trying to resolve them through the subsequent IPC authorisation procedure.

In practice, the vast majority of cases are likely to fall between these extremes. The Secretary of State clearly did not operate a simple policy of leaving it all to IPC, and the correct test for the court was the classic Wednesbury principle - was his decision so unreasonable or perverse that no reasonable Secretary of State could have reached it? The court concluded that the decision in this case satisfied the test: the concerns expressed by the Inspector concerning air quality and health were capable of being addressed satisfactorily by HMIP.

The proposed incinerator had been subject to environmental assessment, and last year a joint working party of the Institute for Environmental Assessment and the UK Environmental Law Association considered how to improve linkages between environmental assessments at the planning stage and the subsequent IPC authorisation process (ENDS Report 210, pp 3-4 ). Jeremy Sullivan's judgement in the present case does not call for any legal or administrative changes to current procedures, though it does make some pertinent comments on HMIP's powers in dealing with IPC applications. For example, he considered that it would be inappropriate for HMIP to have regard to the effect of emissions on the development potential of an area - that is clearly a matter for planning authorities.

The local authority had been concerned that HMIP would be constrained to authorise the plant even if air pollution was to result provided that the "best available techniques not entailing excessive cost" (BATNEEC) were employed. The judgement rejects that analysis.

HMIP may only grant an authorisation if it is satisfied that the plant can comply with conditions aimed at achieving the objectives specified in section 7 of the 1990 Act. The key objective is that BATNEEC must be used to prevent releases of prescribed substances, or where that is not practicable to minimise them and render them "harmless". Jeremy Sullivan noted that section 1 contains a "very stringent" definition of "harm" as harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes offence to any of his senses or harm to his property. In the light of these provisions, the court rejected any assumption that HMIP would have to grant an authorisation even though an emission would be harmful, merely because BATNEEC would be insufficient to render the substance harmless when released.

The decision in the Gateshead case essentially holds that the existence of the IPC regime and its capacity to deal with pollution issues could be a relevant planning consideration. A different analysis might apply where a development raised pollution problems which were not going to be subject to a similar authorisation process. And Jeremy Sullivan warned that even with IPC cases his judgement did not imply that pollution matters could be disregarded at the planning stage: "I stress that this decision is not carte blanche for applicants for planning permission to seek to ignore the pollution implications of their proposed development and say 'leave it all to the EPA'."

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