Clarifying assessment thresholds for burning waste in cement kilns

At the end of July, the Court of Appeal rejected a legal challenge to the decision of a local authority to grant planning permission to allow the use of fuel derived from animal waste in a cement kiln. In doing so, the Court has made a significant clarification of the use of thresholds in environmental assessment regulations.

Burning waste in cement kilns continues to give rise to intense local controversy. R on the application of Horner v Lancashire County Council and Castle Cement Ltd (Court of Appeal (Civil Division) [2007] EWCA Civ 784 30 July 2007) concerned Castle Cement’s plans to burn animal waste-derived fuel in its Clitheroe works.

In 2004 the Environment Agency granted a variation of the firm’s existing pollution prevention and control (PPC) permit to allow a temporary trial use of the fuel. This was later judged a success in environmental terms and permanent use was permitted.

The applicant was a neighbouring farmer concerned about potential contamination from emissions to her livestock farm. It was not in fact the decisions of the Environment Agency that were challenged, but planning decisions made by Lancashire County Council some eight months before the Agency had permitted trials to take place.

Castle Cement had applied for planning permission to erect machinery and other equipment to handle the animal waste-derived fuel. No environmental assessment was undertaken and the council did not conduct a screening exercise as to whether one was needed on the grounds that the application fell below thresholds in the current environmental assessment regulations.

Under the 1985 environmental assessment Directive as amended, a large number of defined projects are subject to assessment procedures only when they are considered as likely to have significant environmental effects. Under the Directive member states were permitted to determine such Annex 2 projects on a case-by-case examination, or by setting thresholds or criteria.

When the UK initially implemented the Directive, it resisted the use of binding thresholds on the grounds that environmental effects were very much driven by the local context of the development, and the use of national thresholds was too crude a determinant. However, the current regulations – the 1999 Town and Country Planning (Environment Impact Assessment) Regulations – have made extensive use of thresholds, but with some protective measures.

The thresholds do not apply to developments in environmentally sensitive areas such as national parks, and in cases that fall below the threshold the Secretary of State still has reserve power to require a screening.

In the present case, the relevant project class in the regulations covered installations for the manufacture of cement, and the threshold in the case of an alteration or extension was defined as where the ‘floorspace’ exceeded 1,000 square metres. This was not a sensitive area as defined in the regulations since the proposed floorspace was below 1,000 square metres and the proposal had not been subject to a screening exercise to decide whether environmental assessment should be undertaken.

The applicant’s first argument was that the particular application involving the servicing of a silo and associated pipework did not actually contain floorspace in any conventional sense, and therefore the threshold was inapplicable. The Court of Appeal rejected this approach. The regulations unhelpfully defined ‘floorspace’ as “the floorspace in any building or buildings”.

But the term ‘building’ is defined by reference to the Town and Country Planning Act 1990 and encompasses any structure or erection. When one looked at the range of different types of development to which a floorspace threshold was applied in the regulations, it was not confined to conventional floorspace. But according to Lord Justice Auld, it “was wide enough to be a marker of scale ‘in any structure or erection’ or part thereof”.

The applicant’s second argument went much further and essentially challenged the nature of the specific thresholds. The threshold chosen in the regulations related only to size and the applicant argued that the Directive itself referred to projects requiring assessment by virtue of their nature, size, or location.

In appropriate cases where a size threshold itself was not appropriate for the change or extension proposed in a planning application, the applicant argued that the authority was entitled and indeed required to ignore the size threshold and consider other criteria in order to give effect to the Directive.

Perhaps not surprisingly, the Court of Appeal was unhappy with the implications of this line of attack. In effect it would undermine the structure of the regulations, and “leave authorities with no clear or reasonably consistent set of criteria against which to judge potentially environmentally sensitive developments”.

The underlying structure of the regulations was to avoid case-by-case evaluation by providing thresholds or other criteria, and this would be defeated if the applicant’s argument succeeded. In addition, the regulations gave reserve powers of the Secretary of State to require screening and disapplied the thresholds in sensitive areas. These two mechanisms went “some way to provide where considered necessary, the alternative of a case-by-case approach envisaged by the Directive”.

Lord Justice Sedley, though, did note wryly that thresholds could lead to ludicrous results: “It is difficult not to have misgivings about a planning mechanism which, by being based on simple floorspace, allows single-storey structures of unlimited height to escape environmental control so long as their ‘footprint’ is less than 1,000 square metres.”

But he felt it was not open to the courts to challenge a criterion laid down in domestic law in apparent conformity with the Directive, and one would have to rely upon the default power of the Secretary of State to require a screening.

Finally the applicant argued that in line with the EU waste framework Directive and the National Waste Strategy 2000, the authority should have given proper consideration to the principle of best practical environmental option (BPEO) when considering the planning application. It had failed do so.

The Court accepted that in line with its previous decisions, the BPEO concept was an important consideration in planning applications – especially for landfill disposal, which was at the bottom of the waste hierarchy. But unlike the requirements of the environmental assessment Directive it was not a precondition of the grant of permission, nor necessarily an overriding planning consideration in all cases.

The High Court had accepted that the council had not specifically considered the BPEO test, but considered that it had addressed the relevant criteria, and specific consideration of BPEO would not have led to a different conclusion.

The applicants argued that a Court should be wary of concluding with hindsight that regard to the BPEO would have made no difference. In the context of environmental assessment, this approach of retrospective validation had been firmly rejected by the House of Lords in the 2001 Berkeley case.

But the Court of Appeal accepted the authority’s arguments that environmental assessment had a dual purpose – to produce an assessment that could be weighed in the planning balance and to inform the public. The BPEO principles, though important, had no similar role and the analogy with Berkeley was not apposite.

The Court acknowledged that in the 2004 Derbyshire Waste case, the Court of Appeal had agreed with the High Court’s decision to quash the planning permission because of the absence of an adequate BPEO assessment. But in that case there had been no local waste management plan in place that had dealt with the concept at least in general terms.

In contrast, here there was a local waste management plan the Council had considered it in reaching its decision. The Court of Appeal endorsed the principle laid down in the Derbyshire case that the required intensity of BPEO considerations on individual waste planning applications would normally depend on whether there is a regional and/or local waste management plan.

If there is not, then some BPEO analysis is required. But equally in the context of an individual application, a local planning authority cannot normally be expected to have the resources to conduct the full and well-informed evaluation that would normally be required of it in its waste-planning capacity, especially in the preparation of a local waste plan.

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