Cornwall Waste Forum, St Dennis Branch, R (on the application of) v Cornwall Council

Under the Conservation of Habitats and Species Regulations 2010, the planning authority must independently consider whether a development may affect a European site. It cannot automatically defer to the Environment Agency merely because the potential effects arise from emissions controlled by an environmental permit. The planning process and pollution-control regime are separate but overlapping, and planning conditions may be relevant to avoiding adverse effects.

Where an inspector has created a legitimate expectation that the need for an appropriate assessment will be considered, fairness requires that the issue be addressed. The court retains discretion under section 288 of the Town and Country Planning Act 1990 not to quash an unlawful decision, but that discretion should not be used where an arguable failure to comply with the Habitats Regulations remains unresolved.

The claimant, an association of objectors to an energy-from-waste plant, challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s grant of planning permission to SITA Cornwall Ltd.

The site was near two Special Areas of Conservation. The Environment Agency had concluded, in the context of environmental permitting, that no appropriate assessment was required. The planning inspector accepted that conclusion and did not determine evidence challenging it. The central issues were whether the planning decision-maker had an independent obligation under the Habitats Regulations, whether the inspector had failed to meet a legitimate expectation, and whether relief should nevertheless be refused as disproportionate.

1. The claim succeeded. The court quashed the Secretary of State’s decision to grant planning permission.

2. The court held that the Habitats Regulations establish a two-stage process. Screening asks whether it can be ruled out that the project might have an adverse effect. If that cannot be established, an appropriate assessment is required. The trigger is not a concluded finding that a significant effect is likely.

3. Regulation 65(2) permits coordination where more than one competent authority is involved, but it does not remove the planning authority’s own obligation. Regulation 68 confirms that the assessment provisions apply to the grant of planning permission and contemplate conditions or limitations designed to avoid adverse effects. The inspector was therefore wrong to treat air quality effects from the plant’s emissions as wholly a matter for the Environment Agency. The Secretary of State had to address the evidence challenging the Agency’s conclusion.

4. The inspector’s correspondence and conduct created a legitimate expectation that he would consider whether an appropriate assessment was required and report on that issue. The claimant was not required to bring separate judicial review proceedings against the Environment Agency’s permit decision when it reasonably expected the issue to be addressed in the planning inquiry. Failure to address the issue was procedurally unfair.

5. In applying the proportionality approach described in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, the court considered the competing public interests, the specific representation, detrimental reliance and the importance of the development. Those considerations did not justify withholding relief while an arguable breach of the Habitats Regulations remained unresolved. The court suggested that the Secretary of State could undertake an appropriate assessment promptly. If adverse effects could be avoided by conditions, permission might then be granted; otherwise the statutory regime would apply, subject to any relevant exception under regulation 62(4).