Environmental Law News Update
June 2, 2020
In this latest Environmental Law News Update, Charles Morgan, Nicholas Ostrowski and William McBarnet consider development consent orders for nationally significant infrastructure projects, further clarification of the circumstances in which an Environmental Impact Assessment (‘EIA’) will be required and the practical ability of the water industry to react to supply shortages.
R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin)
This was an application made by ClientEarth under s.118 of the Planning Act 2008 for judicial review of the decision of the Secretary of State (“SOS”) to grant the application made by Drax Power Limited for a development consent order (“DCO”) for a “nationally significant infrastructure project”: the construction and operation of two gas-fired generating units at Drax’s premises in North Yorkshire.
Holgate J, giving judgment, upheld the decision of the SOS to grant development consent against the recommendation of the Examining Authority (“ExA”). The judgment is relevant to energy infrastructure projects covered by the National Policy Statement for Energy (“NPS EN-1”) and, in particular, provides clarity regarding:
• How need should be considered by the SOS when determining DCO applications; and
• How the planning balance under s.104 of the Planning Act 2008 (“PA 2008”) should be considered.
Need
ClientEarth contended that on a proper interpretation of NPS EN-1 the decision maker is required to assess the individual contribution that any particular project will make towards satisfying the general need for a type of infrastructure set out in the NPS. It submitted that the SOS wrongly assumed that because the proposal fell within one of the types of infrastructure said to be needed, it would necessarily contribute to that need for the purposes of NPS EN-1. The Claimant contended that the NPS required a quantitative need assessment.
Holgate J decided that the NPS does not set out a general requirement for a quantitative assessment of need in the determination of individual applications for DCOs. The NPS establishes that such a need exists and that need is not to be re-examined as part of the examination of an individual project. The court stated that the case advanced by ClientEarth was a barely disguised challenge to the merits of the policy on the basis that it was out of date. If they wished to make such a challenge it should have been brought under s.6 of the PA 2008.
Planning Balance
ClientEarth also contended that the SOS had incorrectly applied s.104(7) of the PA 2008 in that she merely repeated the exercise she had carried out under s.104(3). s.104(3) requires the SOS to determine applications for consent in accordance with applicable NPSs, but s.104(7) allows departure from that principle if the SOS is satisfied that the adverse impacts of the proposed development outweighs its benefits. ClientEarth had also submitted that because para.5.2.2 of NPS EN-1 states that “CO2 emissions are not reasons in themselves to prohibit the consenting of projects” the SOS had incorrectly interpreted that as requiring her to treat GHG emissions as irrelevant or as having no weight, thus unduly fettering her discretion.
Holgate J referred to the decision of Lord Hoffman in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at 780 F-G where it was determined that treating a consideration as irrelevant (a question of law and therefore for the court) was not the same as giving it no weight (a question of fact for the decision maker). The SOS had not treated GHG emissions as irrelevant or as having no weight but rather disagreed with the ExA’s assessment of their weight such that the impact of GHG emissions did not carry determinative weight in the overall planning balance.
As for ss.104(3) and (7), their relationship has to be considered in the context of ss.87(3) and 106(2). The object of the latter provisions is that matters settled by a NPS should not be revisited in the DCO process. Where appropriate, a policy can be reviewed under s.6. This avoids policy being made ‘on the hoof’. s.104(7) cannot be used to circumvent the application of the above subsections (see R (Spurrier) v Secretary of State for Transport [2020] PTSR 240 at [103] to [108]).
Environment Impact Assessment required for former animal carcass facility used to slaughter BSE infected cows
The recent case of R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin) clarifies the circumstances in which an Environmental Impact Assessment (‘EIA’) will be required for developments when the contamination concerns are not scientifically proven.
The site in question was located in the Kent Downs Area of Outstanding Natural Beauty and was previously developed for industrial use having been a sawmill and then an animal carcass rendering facility. Planning permission was granted by the developer to convert the site to residential use.
Unsurprisingly given that history, it was common ground between the developer, the local Planning Authority and the Secretary of State for Housing, Communities and Local Government (‘SSHCLG,’ the Defendant in the case) that the land was contaminated with hydrocarbons and asbestos but the developer maintained that the contamination was not at such a level as to make the conversion of the site to residential use unacceptable in principle. The developer and Local Planning Authority maintained that the proposed measures to mitigate the environmental impacts (effectively a planning condition requiring that, before the site is developed, it should be fully investigated and all contamination completely removed) was sufficient to obviate the need for an EIA because there would not be significant effects on the environment. The SSHCLG agreed after being asked to provide a screening direction.
However, it emerged that those who had undertaken the site investigation and risk assessment had not been made aware that, in the mid 1990s, the site was designated by the government as one of four sites in the UK licensed by DEFRA to dispose of cattle infected with bovine spongiform encephalopathy (“BSE”), which resulted in the outbreak of Creutzfeldt-Jakob disease (“CJD”) in humans. The exact means by which CJD can be transmitted to humans is not settled scientifically and there is a lack of scientific consensus about the way in which BSE infected prions in the soil may be capable of transmitting the disease to humans even after many years.
Notwithstanding this, the SSHCLG held that an EIA was not required because the proposed conditions which required the remediation of all contamination on the site would bring it up to a standard suitable for residential use and would safeguard the health of prospective residents of the development.
In a lengthy judgment which helpfully summarises much of the law relating to EIAs, Lang J held that as there was limited evidence about the presence of contamination from BSE-infected carcasses at the site, the hazards which any such contamination may present and the absence of any safe and effective means of eliminating any such contamination, it was wrong for the SSHCLG to conclude that the measures set out in the proposed planning condition were sufficient to obviate the need for an EIA. Essentially, in seeking to rely upon a planning condition that development could not begin until a study had been undertaken and all contamination removed, the SSHCLG had assumed, without sufficient scientific evidence, that the measures proposed would be successful. Applying the precautionary principle, an EIA was required in this case and the SSHCLG’s screening opinion was quashed.
Those involved in making screening decisions when the science is unclear will need to bear this case in mind.
Lovely weather we’re having …
One of the great consolations of the confinement caused by the current pandemic has been the wonderful spring weather enjoyed by the whole of the country. This blog item is being written outdoors on a glorious June day in lockdown Tyneside. The whole of England, Wales, Northern Ireland and lowland Scotland received 75% or less of its average rainfall during the driest May in 124 years (which followed a distinctly dry April). However, it all comes at a price. A drought is already happening and Water UK has made an informal plea to the public to use less water, at this stage purely, it is said, in order to maintain water pressure. Tyneside itself has little to worry about in terms of water resources, despite its (little-credited) dry climate thanks to Kielder Water (as to all of which see our blog item “Saving it for a rainless day”, written almost exactly a year ago in a period of similar weather). Other regions are not so fortunate and there is the usual round of images in the press of the cracked earth of dry reservoirs and the resurfacing of long-submerged structures.
The report of the National Infrastructure Commission, “Anticipate, React, Recover: Resilient infrastructure systems” is thus timely, including as it does consideration of the water industry and some criticism of its current practical ability to react to supply shortages. Nevertheless, “resilience” is already the legislative watch word for the industry following the creation of the “resilience objective” and the imposition upon Ofwat of the “resilience duty” in the Water Act 2014 (amending section 2 of the Water Industry Act 1991), provisions which came into force in 2015. Given this, it is curious to read that the Commission wants the Government to impose a resilience duty upon Ofwat (and Ofgem and Ofcom too) by 2021 and to require the imposition of resilience standards by 2023. This seems, at any rate in the case of Ofwat, to add little to its existing obligations (which are not identified in the report) save perhaps for requiring some increased degree of specificity. There is, however, no doubting the importance of these matters. Only yesterday, Sir James Bevan, the chief executive of the Environment Agency, told a Parliamentary select committee that the predicted deficit in supply by 2050 is 4.7 billion litres per day.
The Commission’s chairman Sir John Armitt has described climate change as “the fundamental challenge” to resilience. It is interesting to note that the record-breaking dry spell in May was heralded in by some extraordinarily high winds and flash flooding in parts of Wales. Such extreme events seem to have become new, staple parts of late spring weather. Regardless of any lingering debate over the relative contributions of various causes, such changes seem incontrovertibly real and they all impose huge new demands upon existing infrastructure not designed with them in view.
Please also view our Covid-19 Guidance Tracker – a new resource set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.
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