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 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.