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

The Court of Appeal dismissed the appellant's challenge to the Secretary of State's grant of planning permission on an appeal under section 288 of the Town and Country Planning Act 1990. The court applied the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1988 and the Directive 85/337/EEC, in particular Regulation 4(2) and Schedule 3, and held that an inspector must ensure planning decisions are taken on the basis of the environmental information in the Environmental Statement (ES) including measures to avoid, reduce or remedy significant adverse effects.

The court concluded that the inspector had lawfully imposed conditions which defined the parameters of the consent and that leaving detailed implementation (for example species choice and detailed landscaping and a dust suppression scheme) to approval by the local planning authority (LPA) was permissible so long as such approvals could not alter the substance of the permission or the effectiveness of the mitigation measures identified in the ES. The inspector’s decision to leave odour and vermin control to the IPPC regime while requiring a dust suppression condition was also held permissible.

Subsidiary findings included the court’s view that the drafting of condition 3 and the landscaping conditions could have been clearer and that a unilateral s.106 undertaking purporting to bind the LPA was an unfortunate and potentially problematic feature.

Background and parties: Integrated Waste Management Limited (IWM) applied to Bradford City Council to vary conditions of a 1992 quarry permission, permit increased extraction depth and allow landfill of controlled waste at Buck Park Quarry. The application was refused by the local planning authority. On appeal an Inspector allowed the appeal by decision letter dated 14 March 2001, granting permission subject to conditions and a unilateral s.106 undertaking. The claimant, a local resident, appealed under s.288 of the 1990 Act to the High Court (Silber J), which dismissed her appeal on 19 December 2001. The claimant then appealed to the Court of Appeal.

Nature of the challenge: The appellant challenged the lawfulness of conditions imposed by the Inspector on two principal grounds: (1) that Condition 5 (landscaping) and related provisions (including the opening words of Condition 3 and Condition 6) were defective because they failed to require compliance with the mitigation measures in the Environmental Statement and therefore left significant mitigation to be fixed later by the LPA; and (2) that Condition 9 (dust suppression) was irrationally imposed as to dust while odour and vermin were left to the Integrated Pollution Prevention and Control (IPPC) regime.

Issues framed by the court:

• Whether the Inspector complied with the requirements of Regulation 4(2) of the 1988 Regulations (and Schedule 3) to take the environmental information into account and to base his decision on the ES, rather than leaving significant mitigation to subsequent LPA approvals.
• Whether the impugned conditions amounted to an unlawful abdication of the Inspector’s responsibility by permitting the LPA to alter the substance of the permission or its mitigation measures.
• Whether it was permissible to leave odour and vermin control to the IPPC regime while imposing a dust condition.

Court’s reasoning and conclusions: The court reviewed the Directive, the 1988 Regulations (notably Regulation 4(2) and Schedule 3) and authorities addressing the level of detail required in an ES and the limits of reserved matters (Tew, Milne, Hardy, Barker and related authorities). The court accepted that where significant adverse environmental effects are identified, the decision-maker must ensure that sufficient mitigation and detail is before the decision-maker so the public can participate properly. However, it is permissible for an inspector granting full planning permission to leave matters of detailed implementation (for example choice of tree species, detailed planting technique and an approved dust suppression scheme) to conditions and to the LPA for approval, provided that such approvals cannot alter the essential parameters of the permission or the effectiveness of mitigation measures described in the ES.

The court construed the conditions narrowly: condition 3 and the landscaping and dust conditions were to be read as preserving the substance of the permission and the mitigation identified in the ES. On that construction the inspector had not breached Regulation 4(2). The court also held that leaving odour and vermin to IPPC while requiring a dust suppression scheme was reasonable since landfill activities fall within IPPC while mineral extraction does not.

Other observations: Sedley LJ expressed concern about the practice of remitting potentially significant matters to the LPA and about the unilateral s.106 undertaking which purported to impose obligations on the LPA; he suggested that such practice and documents merit further scrutiny.

Appeal dismissed. The Court of Appeal held that the inspector lawfully took the ES and Schedule 3 information into account and that conditions leaving detailed implementation to the local planning authority were permissible when read narrowly so as not to alter the substance of the permission or undermine mitigation measures in the ES. It was also lawful to leave odour and vermin control to the IPPC regime while imposing a dust suppression condition. The court noted that the wording of the conditions and the unilateral s.106 undertaking might have been clearer and that the practice of remitting matters to the LPA calls for careful consideration.

Appeal to the Court of Appeal from the decision of Silber J (High Court, Queen's Bench Division, Administrative Court and Divisional Court) given 19 December 2001 which dismissed the appellant's earlier challenge under section 288 of the Town and Country Planning Act 1990 to the Inspector's decision dated 14 March 2001. Neutral citation for this Court of Appeal judgment: [2003] EWCA Civ 262.