Smith v Secretary of State for the Environment, Transport and Regions & Ors

Environmental impact assessment requires the decision-maker to assess every likely significant environmental effect and the effectiveness of proposed mitigation before granting planning permission. Significant matters cannot be deferred for later determination without the prescribed public participation.

Detailed implementation may be left to a local planning authority or specialist regulator where the permission fixes adequate parameters. The original decision-maker must assess the likely details and their environmental consequences. A condition cannot permit later renegotiation of a substantive element of the permission or of mitigation essential to its environmental acceptability.

A local planning authority refused permission to extend quarrying, deepen a quarry and use it for controlled-waste landfill. Following a public inquiry, an inspector allowed the developer’s appeal and granted permission subject to conditions governing landscaping, landscape management and dust suppression.

A local resident challenged the permission under section 288 of the Town and Country Planning Act 1990. Silber J dismissed that challenge on 19 December 2001. On appeal, the resident contended that the conditions unlawfully left the local planning authority free to alter significant mitigation measures. She also argued that controls for odour and vermin should not have been left to the pollution-control regime.

The central issue was whether the inspector had himself assessed the significant environmental effects and necessary mitigation, or had impermissibly transferred that responsibility to future decision-makers.

1. Appeal dismissed unanimously. Lord Justice Waller delivered the leading judgment. Lord Justice Sedley agreed, although with reservations about the drafting of the conditions. Mrs Justice Black agreed with Lord Justice Waller.
2. The environmental impact assessment regime required the inspector to possess and consider sufficient information about the proposed development, its likely significant environmental effects and the measures proposed to mitigate them. The inspector could not defer the assessment of significant effects or the effectiveness of mitigation merely because another competent authority would consider the matter later. That would deprive the public of its prescribed opportunity to participate in the assessment process.
3. The regime did not require every implementation detail to be fixed in the permission. A decision-maker could leave details to a local planning authority or another responsible environmental body. The permission nevertheless had to impose constraints within which those details would be settled, and the decision-maker had to form a view about the likely details and their environmental consequences.
4. Conditions 3, 5 and 6 were construed narrowly. Read with the decision letter and approved plans, they permitted the local planning authority to approve only matters of detail within the contours, planting requirements and other environmental parameters already assessed by the inspector. They did not authorise substantial departure from the plans, reconsideration of significant environmental effects or removal of material mitigation. On that construction, the inspector had complied with regulation 4(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1988.
5. The same reasoning applied to condition 9. Having required a dust-suppression scheme, the inspector could lawfully leave its details to the local planning authority. He could also leave odour and vermin controls to the statutory pollution-control regime because they arose from landfill operations covered by that regime, whereas mineral extraction and its dust effects were not so covered.
6. Lord Justice Sedley emphasised that a condition cannot lawfully permit later renegotiation of an element of the permission. Conditions should state their limits with legal certainty. He also cautioned inspectors against relying on purportedly unilateral planning obligations which sought to impose duties on a local authority that was not a party to them.

1. Court of Appeal (Civil Division): The resident’s appeal was dismissed unanimously: [2003] EWCA Civ 262.
2. High Court, Queen’s Bench Division (Administrative Court): Silber J dismissed the resident’s statutory appeal under section 288 of the Town and Country Planning Act 1990 on 19 December 2001. No citation is stated in the judgment.
3. Planning inspector: By a decision letter dated 14 March 2001, the inspector allowed the developer’s appeal against the local planning authority’s refusal and granted planning permission subject to conditions.