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

Town and country planning — Development consent – Energy from waste plant – Order granting development consent for plant and compulsory acquisition powers to acquire land for its construction – Section 122 of Planning Act 2008 – Whether compelling case in public interest existing for grant of compulsory acquisition powers – Whether updated environmental statement required before order coming into force – Appeal dismissed In November 2011, a panel of the Infrastructure Planning Commission made an order granting development consent to the interested party, under section 114 of the Planning Act 2008, for the construction of a resource recovery facility (RRF) including an “energy from waste” plant at Stewartby, Bedfordshire. The plant was a nationally significant infrastructure project for the purposes of the 2008 Act. The order included the grant compulsory acquisition powers, under sections 120 and 122 of the 2008 Act, to enable the interested party to acquire land for the purpose of the development, including land owned by the appellant. The order was then laid before parliament pursuant to section 128 of the 2008 Act, where a joint committee reported on it without amendment, and it came into force in February 2013 under the Statutory Order (Special Procedure) Act 1945. The appellant brought a claim for judicial review of the order, contending that: (i) the panel had given inadequate reasons for is view that there was a compelling case in the public interest for the grant of compulsory acquisition powers, as required by section 122(3) of the 2008 Act, since it had failed to explain why there were no reasonable alternatives to compulsory acquisition; and (ii) in the light of the long delay between the making of the order in November 2011 and its coming into force in February 2013, it had been necessary to consider whether it was necessary to update the environmental information in the environmental statement which had accompanied the application, so as to ensure that the decision was based on “current knowledge and methods of assessment” as required by Article 5(1) of Directive 2011/92/EU. The claim was dismissed on both grounds. On ground (i), the judge held that where the panel had regarded the need for renewable energy projects as urgent, as it was required to do when determining the application in accordance with relevant national policy statements EN-1 and EN-3 pursuant to section 104 of the 2008 Act, there would be few circumstances in which it could then legitimately conclude that there was not a compelling case justifying compulsory acquisition of rights in land: see [2014] EWHC 947 (Admin). The appellant appealed. Held: The appeal was dismissed. (1) The judge had erred in his approach to the grant of compulsory acquisition powers. In assessing, for the purpose section 122(3), whether there was a “compelling case in the public interest” for granting compulsory acquisition powers, the decision-maker was obliged to make its assessment in accordance with the contents of any relevant national planning statement (NPS), consistently with its obligation under section 104(3) to determine the application in accordance with any relevant NPS. However, where the NPS established an urgent need for development, that did not necessarily mean that there was automatically and necessarily a “compelling case in the public interest” for the grant of powers of compulsory acquisition. While the need for the development had to be treated as established and could not be questioned, it might be possible to meet the need without the use of the requested powers of compulsory acquisition. The full and proper application of the section 122(3) test was guaranteed by section 104(6), which disapplied the requirement in section 104(3) where it would lead to unlawfulness under any enactment, including under a different provision of the 2008 Act; accordingly, if there was any potential conflict between sections 104(3) and 122(3), the “compelling public interest” test in section 122(3) would not be overridden by section 104(3). It was not difficult to conceive of circumstances where an examining panel could conclude that there was no compelling case for compulsory acquisition despite an NPS having established an urgent need for development. That might occur where: (i) the land proposed to be acquired compulsorily was found to be excessive because the development proposals could be constructed without the need to acquire that land; (ii) the acquisition of a right over the land, rather than the acquisition of the land itself, might suffice; (iii) the acquisition of the land was necessary but could be achieved by agreement with the owner rather than through compulsory acquisition; or (iv) the existence of an alternative site or sites was relevant for the purpose of deciding whether there was a compelling case in the public interest for compulsory acquisition. However, the judge’s error did not affect the outcome of the appeal because there was no suggestion that the panel had made the same, or any other, legal error in its decision to grant development consent. The  panel had not fallen into the error of assuming that, because the “urgent” need for the plant was such as to outweigh the adverse impacts of the development in visual and other terms so that development consent should be granted, it followed that compulsory acquisition powers should also be granted. It had also given sufficient reasons for its conclusion that no other sites provided an alternative to the interested party’s chosen site in terms of delivery and timescale. (2) The environmental impact assessment in relation to the application had to be carried out before the grant of “development consent” by the “competent authority”, which for present purposes meant the order made by the panel, notwithstanding that the consent did not come into force until it had been laid before parliament in accordance with the special parliamentary procedure. Parliament was not designated as a “competent authority” for that purpose and the joint committee’s report on the order was not a development consent. The 2009 Regulations did not fail properly to transpose the requirements of the directive in that regard. The order did not reserve any detailed matters which might have environmental effects for further consideration and approval by parliament. The environmental statement in support of the order had to be, and was, a comprehensive environmental assessment of the development for which development consent was granted by the order. It had been  The environmental statement submitted with the interested party’s application had been compiled on the basis of “current knowledge and methods of assessment”, in accordance with the requirements of article 1.5 of the directive and the definition of “environmental statement” in regulation 2(1) of the Infrastructure Planning (Environmental Assessment) Regulations 2009. Since the joint committee had reported on the order without amendment, there was no change in the development for which consent had been granted which might have led to the need for a further assessment of its effects on the environment: R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions Case C-201/02 [2004] 1 CMLR 31; [2004] PLSCS 87 and R (Barker) v Bromley London Borough Council [2006] UKHL 52; [2006] QB 764; [2006] PLSCS 252 distinguished. James Maurici QC and Andrew Byass (instructed by Nabarro LLP) appeared for the appellant; David Blundell (instructed by the Treasury Solicitor) appeared for the respondent; Emma Harling-Phillips (instructed by DLA Piper UK LLP) appeared for the interested party. Sally Dobson, barrister Click here to read transcript: R (on the application of FCC Environment (UK) Ltd) v Secretary of State for Energy and Climate Change