Hereford Waste Watchers Ltd. v Hereford Council

In environmental impact assessment cases, a planning authority must decide whether a development is likely to have significant environmental effects on sufficient information about the development, its effects and proposed mitigation. Mitigation may be considered only where it is sufficiently specific, available and plainly effective. If the authority remains uncertain, it must obtain further information before granting permission; conditions cannot defer the assessment of significance or the effectiveness of mitigation. The authority may assume that another competent regulator will perform its functions properly, but it cannot transfer its primary responsibility for environmental safeguards. Supplementary reasons in judicial review proceedings may explain the original decision, but cannot contradict or rewrite the reasons recorded at the time.

Hereford Waste Watchers Ltd sought judicial review of Herefordshire Council’s grant of planning permission for a waste treatment and recycling facility. The challenge concerned the adequacy of the environmental statement and the Council’s assessment of an alternative site under the best practicable environmental option principle.

The claimant argued that the officer’s report showed uncertainty about emissions from the proposed process and that the Council had unlawfully deferred necessary environmental information to planning conditions. It also alleged that an alternative site had been rejected on an erroneous floodplain premise. The court therefore considered whether the Council had reached a lawful conclusion on significant environmental effects and whether its treatment of the alternative site was materially flawed.

1. The application succeeded and the planning permission was quashed.

2. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, the planning authority must have sufficient information to decide whether the development is likely to have significant environmental effects. It need not possess every available detail, but it must have enough information to reach a clear conclusion and to enable meaningful public consultation.

3. The authority may take proposed mitigation into account. The measures must be sufficiently specific and available, with no real doubt about their effectiveness. The more sophisticated or controversial the measures, the harder it will be to conclude that effects are unlikely to be significant.

4. If the authority remains uncertain, it must obtain further information or require a supplement to the environmental statement before permission is granted. It cannot use conditions to postpone consideration of the significance of environmental effects or the adequacy of mitigation. The primary responsibility remains with the planning authority, although it may assume that other enforcement agencies will act competently within their proper regulatory functions.

5. The officer’s report did not establish that the Council was satisfied that emissions would be insignificant. It recorded reservations about the effectiveness of negative pressure in the particular building and required further emissions information before development commenced. The later witness statement could not cure that defect because it contradicted, rather than elucidated, the report and did not establish how the members understood it.

6. The second ground failed. The report could properly be understood as rejecting the Rotherwas alternative because of flood risk, including proximity to the floodplain and flooding of access routes. The chosen site’s materially lesser flood risk did not make the comparison irrational.

7. Permission to appeal was granted.

First-instance judicial review. The planning permission was quashed. Permission to appeal was granted, but no appellate decision is stated in the judgment.