The English High Court handed down a ruling that provided
English planning authorities the right to deny planning permission in
circumstances where they have grounds to contend that the environmental effects
of a particular development project are not necessarily catered to by existing
licensing or permitting regimes.
The nature of the relationship between environmental
permitting and planning controls has been seen as unclear in legal spheres for
years. The crux of the debate concerns the extent that the planning authority,
acting to determine application, has to consider or implement conditions in
line with environmental impacts in the instance these are to be regulated by a
separate body under the auspices of a separate statutory regime.
In the Northern Irish legal cannon a measure of
clarification to this question is brought via Planning Policy Statement (“PPS”)
11 – Planning and Waste Management. Here it is stated that planning control “should
not duplicate other statutory controls” and that planning decisions should be
made “on the basis that the pollution control regimes will be properly applied
and enforced”. In theory the application of this provision is narrow; it
applies to waste management. However in actuality this key point can be applied
to the myriad of activities subject to environmental permitting.
The case Harrison v Secretary of State for Communities and
Local Government and Cheshire West and Chester Council ([2009] EWHC
3382) provides a further measure of clarification. The case involved an
animal processing plant characterised by a lengthy history of complaints from
the local populace due to the odour its activities released into the
surrounding area.
The facility itself did not have planning permission;
however the local council did engage in regulating the site under the
provisions of a Pollution Prevention and Control (“PPC”) Permit. A Planning
Inspector was requested in to ascertain whether a deemed planning application
should be allowed after a planning enforcement notice was served, which was
appealed by the operators of the site. The Inspector considered English PPS 23,
which reflects the principles of NI PPS 11, laid out above, when deciding to
dismiss the appeal request and ultimately deny planning permission. In the
decision the Inspector put forward the argument that the odour issues had a
high chance of persistence in spite of the controls of the PPC Permit. The
operator further appealed this decision based on the principle that the
guidance put down in PPS 2 had been disregarded, with no justification for
doing so having been stated.
In its ruling the High Court stated that planning
authorities should work on the basis of assurance that the environmental permitting
regime will be correctly enforced and monitored. Despite this the judgements
did not call on planners to categorically decide that no pollution issues would
arise: “if the decision-maker considered that there might be adverse
consequences... on amenity and/or issues as to the appropriateness of locating
the development of the site in question... he was entitled to regard such
matters as material considerations”.
The landmark Harrison judgement can be used to provide a
greater degree of clarification on the role of planning authorities in deciding
upon applications for development that fall under the auspices of environmental
permitting. Considering the overarching similarity between the environmental
permitting regimes in England and Northern Ireland, along with the planning
guidance provided on this issue, this ruling can be directly applied to this
jurisdiction. The principles gleaned from this judgement could be considered as
applicable to other statutory controls such as waste management licences or
water discharge consents in the eventuality that they hold relevance to a
planning application.
This ruling alludes to the idea that planning authorities
should be allotted the right to an increased emphasis to likely environmental
risks rather than taking these issues and delegating this consideration to the
NI Environment Agency or local council as environmental regulator. However this
argument carries the risk of flooding the planning authority with technical
issues that should fall completely under the remit of the expert environmental
regulators. Furthermore this ruling would seem to hold a greater significance
for facilitates that have experienced environmental issues for a sustained
period of time. In considering this issue in relation to new developments we
come to the conclusion that it is a difficult task to pinpoint environmental
risks that are not provided for under relevant permits and should naturally be
taken into account by the planning authority. An issue as complex as this is
destined to appear before the courts at some point in the future; in some ways
the issue remains as unclear as ever.
