Bailey & Ors, R (on the application of) v Secretary of State for Business, Enterprise & Regulatory Reform & Ors

Air-quality effects are material planning considerations, but operational pollution control may properly be left to a specialist regulator where effective controls can address the risk. A decision-maker need not refuse consent merely because development may add pollution in an existing air quality management area. The evidence must enable a proper assessment of whether excessive emissions are possible and controllable, and the reasons must explain why reliance on the regulatory regime is appropriate. Judicial review claims challenging planning permission must be brought promptly. Delay may cause substantial prejudice to the permission-holder and justify refusal of permission or relief.

The claimants sought judicial review of the Secretary of State’s decision to grant consent under section 36 of the Electricity Act 1989 for a 350-megawatt woodchip-fuelled generating station at Port Talbot, together with deemed planning permission under section 90(2) of the Town and Country Planning Act 1990. Their principal concern was the effect of additional PM10 emissions on local health, particularly in an existing air quality management area.

The claim was heard as a rolled-up application for permission and determination. The issues were whether the Secretary of State could rely on the pollution-control regime, whether his reasons were adequate, and whether the claim had been brought promptly given the developer’s expenditure after the decision.

1. Permission and merits. Permission was refused and the claim failed. Air quality was a material planning consideration, but the existence of an effective pollution-control regime was also highly material. The principle reflected Gateshead Metropolitan Council v Secretary of State for the Environment [1995] Env LR 37.
2. The Secretary of State had sufficient evidence to conclude that the proposed plant’s contribution to PM10 concentrations was insignificant or controllable. The Environment Agency Wales had indicated that the effects could be dealt with through the PPC determination process. It was therefore lawful to grant consent and deemed planning permission while leaving operational emissions to the regulator.
3. A decision-maker may rely on the regulatory regime where the material before him permits a proper view of whether excessive emissions are possible and whether effective controls can achieve the necessary result. If excessive pollution cannot be controlled, refusal may be appropriate.
4. The reasons were adequate. Read fairly, the decision letter made clear that pollution controls and compliance with applicable limits could properly be left to the regulator. No more detailed explanation was required on the material before the Secretary of State.
5. Delay. Judicial review claims must be brought promptly and in any event within three months. The former analogy with the six-week period for challenges under section 288 of the Town and Country Planning Act 1990 had been disapproved by the House of Lords in Birkett. An intending claimant should alert a planning-permission holder promptly, since the holder may otherwise incur expenditure in reliance on the permission.
6. The claimants delayed until shortly before the three-month period expired. The developer had incurred more than £400,000 which could have been avoided had it known of a possible challenge. The claim was not brought promptly and substantial prejudice existed for the purposes of section 31(6) of the Supreme Court Act 1981. Costs of £10,000 were ordered in favour of the defendant and the second interested party. Leave to appeal was refused.

First-instance judicial review claim heard as a rolled-up permission and merits hearing. The judgment does not state any prior appellate decision in this dispute.