Kent, R (on the application of) v First Secretary of State & Ors

In an environmental impact assessment, the decision-maker must have sufficient information to identify and assess the development’s main or likely significant environmental effects. The court reviews that assessment on ordinary Wednesbury principles.

The planning authority must set the parameters within which future details will be worked out. Within those parameters, it may rely on subsequent planning controls or a separate pollution-control regime. Generic descriptions of waste may suffice if they enable the main environmental effects to be assessed and are secured by planning conditions. A pollution-control process cannot cure an environmental statement that is so deficient that it is not properly an environmental statement, but that threshold is exceptional.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision granting planning permission for the disposal of waste in rock-salt caverns. The challenge concerned the adequacy of the environmental statement under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, the relationship between environmental assessment and pollution-control regulation, and three planning conditions.

The claimant argued that the environmental statement failed to identify waste types with sufficient particularity, that conditions concerning waste acceptance unlawfully left matters unresolved, and that airborne particulates could not be left to a later monitoring condition. The Secretary of State relied on the indicative waste descriptions, the risk assessment, the planning conditions and the subsequent PPC regime.

1. The statutory challenge was dismissed. The court also made a wasted costs order against the claimant’s solicitor in the sum of £3,352.
2. Under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, the Secretary of State had to decide whether the environmental statement contained sufficient information to identify and assess the main or likely significant environmental effects. That evaluative judgment was reviewable only on ordinary Wednesbury principles. The statement did not need to address every conceivable effect.
3. The EIA and PPC regimes had separate functions, although they could overlap. The planning decision-maker had to define the parameters or constraints within which likely significant effects could be assessed. Once that had been done, detailed matters could properly be left to planning conditions or the Environment Agency’s PPC permit process. The PPC process could not convert an unlawful environmental statement into a lawful one, but this was not one of the exceptional cases in which the document could not reasonably be described as an environmental statement: [2004] Env LR 569; [2003] 2 P&CR 162.
4. The generic waste categories, together with the assessment of representative, reactive and volatile wastes, supplied sufficient data for planning purposes. The Regulations did not require scientifically validated “hard data”, nor did they require every specific waste to be identified at the EIA stage. Condition (xii) secured the relevant parameters by restricting permitted waste characteristics and expressly excluding specified wastes. Condition (xiv) therefore did not give the site chemist an unlimited discretion.
5. The monitoring condition concerning airborne particulates was lawful. In the context of the Inspector’s assessment, particulates represented a low-risk matter concerning land use, and could be dealt with by a condition imposed for the waste planning authority.
6. For wasted costs, the court applied the three-stage inquiry: whether the legal representative acted improperly, unreasonably or negligently; whether that conduct caused unnecessary costs; and whether it was just to order compensation. Serving an unnecessarily wide 44-page document as a witness statement caused avoidable work and justified the order.

The judgment records that an earlier grant of planning permission was quashed by consent on 19 February 2003 following a statutory challenge under section 288 of the Town and Country Planning Act 1990. The present challenge to the Secretary of State’s redetermination was dismissed. Permission to appeal was refused.