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R (Cornwall Waste Forum St Denis Branch) v Secretary of State for Communities and Local Government

País/Territorio
Reino Unido
Tipo de la corte
Nacional - corte superior
Fecha
Mar 29, 2012
Fuente
UNEP, InforMEA
Nombre del tribunal
Court of Appeal
Sede de la corte
London
Juez
Arden, Carnwath and Moore-Bick .
Número de referencia
[2012] EWCA Civ 379
Idioma
Inglés
Materia
Aire y atmósfera, Medio ambiente gen.
Palabra clave
Protección del hábitat Calidad del aire/contaminación del aire Contaminación del aire (fuentes fijas)
Resumen
The present case considers the inter-relationship/overlap between planning and pollution control decision making in the context of appropriate assessment under the habitats regime – areas which can cause practical difficulties for applicants and decision-makers. In granting planning permission for an incinerator close to two special areas of conservation (SACs), the Inspector/Secretary of State relied on the Environment Agency’s assessment of air emissions and did not consider evidence challenging the Agency’s view. The Inspector took this course of action on the basis that he was not required to consider air emissions as part of the planning process. The High Court judge quashed the planning permission. The Inspector was wrong in law because the effect of the emissions on the SAC is a matter for the planning system. Further, an expectation had been created during the inquiry process that the Inspector would deal with air emissions as the competent authority for the purposes of the habitats regime. Nor could the Inspector or Secretary of State avoid that responsibility on the basis that the Environment Agency had the relevant expertise. Expert evidence might be relied upon, but the decision-maker had to form judgements on matters in dispute. As the Habitats Directive 92/43 (as amended) and Habitats and Species Regulations 2010 (SI 2010/490) were law, and the claimant had an arguable issue on the need for an appropriate assessment, discretion could not be exercised to refuse relief despite the public interest in the development. The Court of Appeal disagreed. It said that, by the time of the Inspector’s report, all the issues which had required consideration by those other than the Agency had disappeared from the case. Hence, the Inspector was entitled to change his mind, and decide that, after all the Agency was the best competent authority to decide things – even though the Inspector had approached things differently at inquiry. Lord Justice Carnwath added: “The Forum has not been unfairly deprived of anything….. If one cuts through the legal and procedural arguments, the only substantive criticism of the Secretary of State’s decision is in relation to his reliance, through the [Environment] Agency, on the 1% rule as a test of ‘significance’ under the Directive.” The 1% rule is that if the long term ‘process contribution’ for a pollutant is less than 1% of the relevant Air Quality Standard, its effects are deemed ‘insignificant’. The judge said: “The evidence before the inquiry was that the rule had been used in published guidance by the Agency, with the agreement of Natural England, for a number of years without legal challenge.” Lord Justice Cornwath said the council, which initially challenged the use of the rule, did not maintain that challenge. “Instead they point to the severe economic and practical consequences of any further delay in confirming the permission,” said. The judge added: “The Forum has chosen not to challenge its legality either by way of judicial review of the Permit, or as part of the present proceedings. We are asked instead to send the issue back to the Secretary of State so that he may address it, purely on the basis that it has not been shown to be unarguable, and without any persuasive reason to think that ultimate decision will be any different. In my view, the Forum has failed to show any valid grounds to justify that course.” Lord Justice Carnwath said he would allow the appeal and confirm the validity of the Secretary of State’s decision.
Texto completo
COU-159749.pdf