FCC Environment (UK) Ltd, R (on the application of) v The Secretary of State for Energy and Climate Change & Anor

Under the Planning Act 2008, an urgent need established by a national policy statement does not automatically establish the separate compelling public-interest case required for compulsory acquisition. The decision-maker must still consider whether the need can be met without the requested powers, including by an alternative capable of delivering the same infrastructure capacity within the same timescale. Reasons are read fairly and as a whole. For environmental impact assessment, development consent was the comprehensive order made by the Panel, not the later parliamentary event that brought it into force. A delay did not require an updated environmental statement where the order was unamended and no further environmental effects required assessment.

Covanta sought a development consent order under the Planning Act 2008 for an energy-from-waste and recycling facility, including compulsory acquisition of land and rights benefiting FCC Environment. The Panel made the Rookery South Order on 22 November 2011. It came into force on 28 February 2013 after the Joint Committee reported without amendment under the special parliamentary procedure.

FCC Environment's judicial review challenged the adequacy of the Panel's reasons for finding no alternative to compulsory acquisition and the failure to update the environmental statement during the delay. Mitting J dismissed the claim in [2014] EWHC 947 (Admin). The appeal concerned the interaction between the compulsory acquisition and national policy tests, the assessment of alternative sites, and whether the parliamentary stage was a further development consent requiring current environmental information.

1. Compulsory acquisition. The High Court judge erred in suggesting that an urgent need established by a national policy statement would ordinarily establish the compelling case in the public interest required for compulsory acquisition. Section 104(3) of the Planning Act 2008 applies to the application as a whole, whereas section 122(3) imposes a distinct compulsory-acquisition test. Established need cannot be questioned, but the decision-maker must still consider whether the need can be met without compulsory acquisition. Section 104(6) preserves that separate test. The error did not affect the result because the Panel made no equivalent legal error.
2. Adequacy of reasons. A statement of reasons must be read fairly and as a whole, rather than analysed sentence by sentence. The Panel's conclusion that there were no alternatives was intelligible by necessary implication. Under paragraph 4.4.3 of NPS EN-1, the relevant question was whether there was a realistic prospect of an alternative delivering the same infrastructure capacity, including energy-security and climate-change benefits, within the same timescale. The Panel had considered the dispersed solution of smaller facilities and was entitled to conclude that most alternatives were at an early stage and were not certain to progress. Ground 2 failed.
3. Environmental assessment. Under Directive 2011/92/EU and the Infrastructure Planning (Environmental Assessment) Regulations 2009, assessment had to precede development consent. The Panel was the competent authority and its Order, made on 22 November 2011, was the development consent. Parliament's later report was not a second consent. Authorities concerning outline permission followed by approval of reserved matters were distinguishable. The Order reserved no environmentally material matters and was reported without amendment, so the delay before it came into force did not require an updated environmental statement. Any possible legislative lacuna concerning amended orders was academic and immaterial.
4. The appeal was dismissed. Aikens and Black LJJ agreed with Sullivan LJ.

• Court of Appeal (Civil Division): Sullivan LJ dismissed the appeal on 5 February 2015; Aikens and Black LJJ agreed. [2015] EWCA Civ 55.
• High Court of Justice, Queen's Bench Division, Administrative Court: Mitting J dismissed FCC Environment's judicial review claim on 6 February 2014. [2014] EWHC 947 (Admin).