Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government

Where more than one competent authority is concerned with a project, regulation 65(2) of the Habitats and Species Regulations 2010 permits the planning decision-maker to leave an environmental issue to the authority better placed to assess it. Earlier procedural representations do not bind the Secretary of State to make that assessment if the material issues later fall within the specialist authority’s competence.

The Secretary of State remains responsible for the planning decision but may rely on specialist environmental advice. That reliance is impugned only if the advice is shown to be materially flawed. A claimant cannot establish procedural unfairness merely by asserting that an unpleaded challenge to the legal basis of that advice is arguable.

SITA Cornwall Ltd sought planning permission for a waste-treatment plant close to protected habitats. The Secretary of State recovered and allowed SITA’s planning appeal after an inquiry. The Environment Agency separately issued an environmental permit and concluded, using the 1% rule, that the plant would have no likely significant effect on the protected sites.

The Forum brought a statutory challenge under section 288 of the Town and Country Planning Act 1990. Collins J quashed the planning permission. He held that the Forum had legitimately expected the Inspector and Secretary of State to decide whether an appropriate assessment was required, including the objections to the Environment Agency’s approach.

The Secretary of State and SITA appealed. The central issues were whether that expectation prevented reliance on regulation 65(2), whether the Inspector had wrongly treated stack emissions as outside planning control, and whether the Forum had been treated unfairly by the Secretary of State’s reliance on the Environment Agency’s assessment.

1. Appeals allowed unanimously. Carnwath LJ, with whom Moore-Bick and Arden LJJ agreed, confirmed the validity of the Secretary of State’s planning decision.

2. The Forum had reasonably expected, at the start of the inquiry, that the Inspector would address whether an appropriate assessment was required under regulation 61 of the Habitats and Species Regulations 2010. That expectation did not determine the appeal. The competent authority was the Secretary of State, not the Inspector or the Planning Inspectorate. They could not commit the Secretary of State to an election under regulation 65(2). The earlier representations also reflected circumstances in which potential effects extended beyond stack emissions; they did not bind the Secretary of State if the issues later narrowed to matters within the Environment Agency’s expertise.

3. The Inspector had not misdirected himself by saying that control of stack emissions was a matter for the Environment Agency. He did not treat those emissions as irrelevant to the planning decision. Rather, once the remaining habitat issue concerned emissions controlled by the permitting regime, the Secretary of State was entitled to be guided by the Environment Agency and Natural England. That approach accorded with the planning principle approved in Gateshead MBC v Secretary of State (1971) 71 P&CR 350, that planning should not duplicate specialist statutory pollution controls.

4. The Secretary of State had implicitly decided the challenge to the 1% rule by accepting the Environment Agency’s reasoning. If that rule involved a legal error, the Forum had to advance and establish that error in the present proceedings. It was insufficient to say that the point was arguable and seek a remittal for the Secretary of State to decide it. The Forum could have challenged the permit or raised the same legal issue in its challenge to the planning decision. It was therefore not unfairly deprived of a reasoned decision or an effective remedy.

• Court of Appeal (Civil Division): The Secretary of State’s and SITA’s appeals were allowed. The planning permission granted by the Secretary of State was restored.
• Administrative Court (Queen’s Bench Division): Collins J allowed the Forum’s application under section 288 of the Town and Country Planning Act 1990 and quashed the planning permission on 13 October 2011.