Environmental assessment and PPC

In what appears to be the first court decision explicitly concerning the relationship of environmental impact assessment and the pollution prevention and control (PPC) regime introduced in 2000, the High Court has been confronted with a familiar dilemma facing planning authorities as to the level of detail that can be safely left for decision by specialised pollution control authorities.

R on the application of John Kent v First Secretary of State, Cheshire County Council and Minosus Ltd (Administrative Court, High Court of Justice, 3 December 2004, [2004] EWHC 2953) was a challenge by a local resident to the grant of planning permission for disposal of hazardous waste in rock salt caverns in Middlewich.

The application by Minosus had been called in by the Secretary of State, and following a two-week public inquiry in 2001 he granted conditional planning permission (ENDS Report 331, pp 17-18 ).

After a successful challenge by the claimant as to the validity of the conditions, the Secretary of State reconsidered the matter, but again granted permission in 2003 subject to new conditions. It was this decision that was the subject of the present case.

The project was subject to compulsory assessment under the EU Directive on environmental impact assessment (EIA) and 1999 implementing regulations. The environmental statement produced by the developers contained broad details of the types of waste that would be acceptable and non-acceptable, together with a qualitative risk assessment.

In addition to planning permission, the project required a permit from the Environment Agency under the 2000 PPC regulations which implemented the EU Directive on integrated pollution prevention and control. At the public inquiry the Agency indicated that it had no objection to the project in principle, and would consider a detailed assessment of the waste types, their quantities, and acceptance criteria when considering the PPC application. In subsequent representations to the Secretary of State, the Agency reiterated that detailed control of the operation was best handled by the PPC controls.

Essentially, the applicants argued that there was insufficiently detailed information before the Secretary of State concerning the waste types to fulfil the data requirements of the statement produced as part of the environmental assessment, and provide an adequate assessment of the risks involved. It was not permissible to rely on PPC procedures to handle detailed material that should be available as part of the EIA process, since a fundamentally flawed environmental statement rendered the process unlawful, and it could not be made lawful by subsequent procedures.

The principles to be adopted concerning the legal adequacy of environmental statements, and the relationship of planning decisions and former IPC controls, have been considered in a number of previous cases.

In one of the most recent, Blewitt, Mr Justice Sullivan warned against taking an unduly legalistic approach to the information requirements for environmental statements under the EIA regulations, and noted that cases where a statement was so deficient as to invalidate the process were likely to be few and far between.

In the present case, Mr Justice Harrison adopted a similar approach. He noted the number of bodies, including the Environment Agency, the county and borough councils, the planning inspector and the Secretary of State, who were satisfied with the statement.

That did not mean they were all correct, but in his view "the authorities show that, whilst the environmental statement must contain sufficient information to enable the decision maker to make an informed judgment as to whether the development is likely to have a significant effect on the environment, it is for the decision maker to decide whether the information contained in the document is sufficient to meet the definition of an environmental statement in regulation 2 of the EIA regulations, subject only to review on Wednesbury [unreasonableness] grounds, whilst also bearing in mind that the document does not have to contain information about all the effects, only the 'main effects' or the 'likely significant effects'."

Looking at the facts of the case, Mr Justice Harrison considered that there was sufficient information in the statement before the Secretary of State. It was true that the waste types specified were generic and not particularised in detail, "but there is no need for them to be so specified at the EIA stage, provided the description of the generic types was sufficient to enable the decision maker to identify and assess the main effects of the development on the environment." Furthermore, no one had suggested that any particular waste type had fallen through the net of the generic types considered in the risk assessment.

As to the relationship between the EIA procedures and PPC controls, Mr Justice Harrision held that the decision-maker in the EIA process was concerned with the impact of the development on the use of land, while the decision-maker in the PPC process was concerned with the potential polluting effect of the proposed development on the land: "There can clearly be some overlap between the two regimes, but they are separate regimes which have separate functions."

This is undoubtedly a fair reflection of the British system where detailed pollution regulatory controls, culminating in the current PPC regulations, were developed separately and at a later stage from planning controls.

However, from an EU perspective, the EIA Directive does not make such a clear distinction. Locating the EIA regime so firmly within the planning system was a natural response by the British government before the introduction of IPC controls in the UK. But this has led to its own problems, not least for project types which did not require planning permission under UK law.

The European Commission has launched infringement proceedings against the UK, arguing that developments which do not require planning permission - where, for example, there is no material change of use - but do need a new PPC permit are still subject to EIA requirements, whatever the British regulations say. If this case reaches the European Court of Justice, the approach taken by the Court will be watched with considerable interest.

Richard Macrory, Professor of Environmental Law, University College, London

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