Planning Legislation Review

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A reche environmental permitting of industrial processes. The High Court in England ruled that English planning authorities may refuse planning permission where they consider that the environmental impacts of a development may not be adequately controlled by other licensing or permitting regimes.

 

The relationship between environmental permitting and planning controls has remained something of a grey area for many years. To what extent can the planning authority, in determining an application, take into account or impose conditions relating to environmental impacts when these will be regulated by a separate body under a separate statutory regime?

 

In Northern Ireland, some clarification is provided in Planning Policy Statement (“PPS”) 11 – Planning and Waste Management. This states 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”. Although relating specifically to waste management, arguably the principle applies to other activities subject to environmental permitting.

 

Harrison v Secretary of State for Communities and Local Government and Cheshire West and Chester Council ([2009] EWHC 3382) concerned an animal-food processing plant that had a long a history of complaints from local residents arising mainly from odour.

 

Although the site was regulated by the local council under a Pollution Prevention and Control (“PPC”) Permit, the facility did not have planning permission. A planning enforcement notice was served and appealed by the site operators, requiring the Planning Inspector to determine whether a deemed planning application should be granted. In dismissing the appeal and refusing planning permission, the Inspector considered English PPS 23, which reflects the principles of NI PPS 11 above. The Inspector concluded that odour problems were likely to continue regardless of the controls under the PPC Permit. The operator appealed on the grounds that the guidance in PPS 23 had not been followed and no clear justification for doing so had been given.

 

The High Court noted that planning authorities should assume that the environmental permitting regime will be properly monitored and enforced. However, the guidance did not require planners to conclude 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 Harrison judgment provides some useful assistance on clarifying the role of planning authorities in determining applications for development that will be subject to environmental permitting. Given the broad similarity between the environmental permitting regimes in England and Northern Ireland as well as the planning guidance on this issue, the judgment has direct relevance to this jurisdiction. The principles may also apply to other statutory controls, such as waste management licences or water discharge consents where these have relevance to a planning application.

 

The judgment suggests that planning authorities should be allowed to give greater weight to likely environmental risks rather than delegating consideration of these issues to the NI Environment Agency or local council as environmental regulator. That said, this brings with it the risk of the planning authority becoming bogged down in technical issues that should be solely within the remit of the expert environmental regulators. Also, the judgment would seem to be more relevant in relation to existing facilities that have a history of environmental problems. For an entirely new development, it may be more difficult to identify environmental risks that cannot be addressed by relevant permits and should therefore be taken into consideration by the planning authority. Undoubtedly this issue will come before the courts again in the future.

 

Should you have any questions on the topics discussed in this article or more general questions on environmental issues facing your business, please contact Andrew Ryan on 028 9082 0527 or email andrew.ryan@tughans.com