Vetterlein, R (on the application of) v Hampshire County Council & Anor [2001] EWHC 560 (Admin)

EWHC-Admin
Vetterlein, R (on the application of) v Hampshire County Council & Anor
[2001] EWHC 560 (Admin) · 2001-06-14
[1]MR JUSTICE SULLIVAN : Introduction: This is a challenge to a decision of the Hampshire County Council's Planning and Transportation Committee at a special meeting on 11th December 2000 to grant planning permission to Hampshire Waste Services Limited ("HWS") for the construction of an energy recovery facility and waste transfer station at Marchwood Industrial Park, subject to conditions, a legal agreement and the Secretary of State not calling in the application for his own determination. In a letter dated 3rd January 2001 the Secretary of State said that he had decided not to intervene.[2]The 3.8 hectare site occupies part of the former Marchwood Power Station, demolished in 1990, on the south side of the river Test. On the opposite side of the river is Southampton Docks, beyond that there is the city's civic centre and commercial area with extensive areas of housing to the north. The claimants live to the north of the city centre and the docks in residential areas 1.63, 1.79 and 2.14 miles from the centre of the application site, respectively. In excess of 64,000 people live within a radius of 2.14 miles from the centre of the application site.[3]The energy recovery facility will process by incineration around 165,000 tonnes of waste per annum reducing the volume of the waste by 90 percent. Some of the ten percent residue will be recycled. Approximately 14 mega watts of electricity will be generated and the waste transfer station will deal with around 25,000 tonnes per annum, principally recyclables and waste not suitable for incineration. In the interests of brevity I will refer to the facility as an incinerator and to the process as incineration, although I appreciate that there are significant differences in policy terms between simple incineration and energy recovery.[4]The Environment Agency, following a consultation which included a public meeting, issued an integrated pollution control ("IPC") authorisation on 30th June 2000. The authorisation was subject to numerous conditions including in Part 2 conditions regulating the release of substances into air. Those substances included nitrogen dioxide.[5]The application for planning permission was submitted together with an environmental statement, technical appendices, and a non technical summary on 20th June. The environmental statement was available for inspection and the consultation process included a public meeting arranged by the Marchwood Parish Council.[6]The County Council received 24 letters of objection, including one from the first claimant, and a letter of support. No objections were raised by Southampton City Council, the New Forest District Council, the South West Hampshire Health Authority or the Environment Agency. Six days before the special meeting on 11th December councillors were supplied with a copy of a lengthy report on the application for planning permission by the county planning officer ("the report").[7]The report was made available to the public either two or three working days in advance. The first claimant was allowed to address the special meeting for ten minutes in opposition to the application. The Claimants' Grounds of Challenge:[8]On behalf of the claimants Mr Fordham challenges the decision of 11th December on three grounds: two substantive points and one procedural point. The first ground contends that the report was erroneous in a material respect in that it inaccurately summarised the environmental statement. The environmental statement had identified nitrogen dioxide as "the most critical pollutant".[9]Among the applicable standards and guidelines it set out the World Health Organisation ("WHO") guideline of 40 micrograms per cubic metre as an annual mean. In the remainder of this judgment I will omit further reference to micrograms per cubic metre when dealing with the question of standards. The air quality assessment annex 4 to the environmental statement ("the assessment") showed that this current guideline was being exceeded in a number of locations in Southampton, thus any nitrogen dioxide which would be emitted by the incinerator would worsen an existing breach of WHO guidelines.[10]The point made on behalf of the claimants is summarised in the following way by Mr Watson, a partner in Public Interest Consultants, an environmental consultancy specialising in energy and waste issues, as follows:
"The background levels were already around and in excess of the air quality guidelines. The incinerator was a significant further contributor to pollution, which was going to make matters even worse. Even if the incinerator was not "leading to" breach of the standards, because of existing levels, that did not mean there would be no breach. Nor did it mean that the breach would not be made worse because of the incinerator. And it certainly did not follow that there was no risk to health. The air quality standards, designed to reflect public safety, were exceeded (ie breached)."
[11]He added this:
"I have focused on one issue, namely nitrogen dioxide and the air quality standard. There are other points which could be made about other aspects, and would call for scrutiny were there some forum for public scrutiny of the evidence. However, I have stuck to an outline of what I consider to be the strongest point, appreciating that if this does not assist the Court others will not do so."
[12]Mr Fordham submits that the report erroneously told members that there was no breach of any standard and that therefore there was no health risk. Since members were not told of the existing breaches of the WHO guideline, members were, in effect, lulled into a false sense of security as to the lack of any health risk. As a result of the misleading report they failed to take into consideration a relevant factor (the existing breaches). Alternatively, they took account of an irrelevant consideration (the erroneous assertion that there was no existing breach). This first ground of challenge is based on "conventional" judicial review grounds.[13]The second ground is based on the proposition that the claimants' rights under article 8 of the Europe Convention on Human Rights ("the Convention") to respect for their private and family lives and homes were engaged by the decision to grant planning permission. There is a direct link between the pollution complained of (adding further nitrogen dioxide emissions in an area where the WHO guidelines are already exceeded) and the claimants' quality of life. The County Council failed to acknowledge that article 8 applied on the false premise that there was no breach of the WHO guidelines.[14]The third ground, the procedural point, contends that the County Council's decision on 11th December was a determination of the claimants' civil rights for the purposes of article 6(1) of the Convention. No point is taken as to the independence of the Council as the decision taker, but it is said that in the absence of a public inquiry at which evidence could be tested, the claimants were denied the "fair and public hearing" to which they were entitled under article 6(1). Procedural Issues:[15]Before turning to these three grounds of challenge, I should deal with a number of procedural issues. Pursuant to an order of Harrison J on 22nd March, the application for permission to apply for judicial review and the substantive hearing of this application have been dealt with together at this rolled up hearing. It was agreed by all parties that Mr Fordham should be allowed to present his full arguments on behalf of the claimants. He had prepared a detailed skeleton argument which he amplified during the first of the two days set aside for this hearing. In the course of his submissions he helpfully referred me to all of the relevant documents in a trial bundle which exceeded 600 pages in length and to the relevant authorities in a two-volume composite bundle of authorities which had been agreed between the parties.[16]Against this background I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimants' case arguable? Having heard the arguments I am in a position to determine the substantive application for judicial review on its merits.[17]When these proceedings were commenced the Divisional Court had recently given judgment in R (Alconbury Developments Limited and Others) v Secretary of State for the Environment, Transport and the Regions , now reported in [2001] 2 Weekly Law Reports 1389 ("the Alconbury case").[18]The claimants in these proceedings sought a declaration that the County Council's powers under the Town and Country Planning Act 1990 were incompatible with article 6. Accordingly, Harrison J invited the Secretary of State to exercise his right to intervene under section 5 of the Human Rights Act 1998. Mr Corner was instructed to appear on behalf of the Secretary of State. In the light of the decision of the House of Lords in the Alconbury case the claimants no longer pursue the argument that the County Council was not an independent and impartial tribunal and do not seek a declaration of incompatibility. Their article 6 and article 8 arguments are presented on a much narrower front (see above).[19]Notwithstanding Mr Fordham's submissions, I was satisfied at the conclusion of the claimants' case that the substantive application had to be dismissed. I did not, therefore, find it necessary to call on Mr Straker QC, who appeared with Mr Sheridan for the County Council, or Mr Read QC, who appeared with Mr Tromins for HWS, or Mr Corner. For convenience I will refer to the County Council, HSW and the Secretary of State collectively as "the defendants".[20]While I was much assisted by the defendants' skeleton arguments, a number of their submissions, particularly as regards article 6 and 8 of the Convention, will not be reflected in this judgment. Since I am satisfied that the claimants' case fails to get off the starting blocks on the facts, it would not be appropriate for me to attempt to resolve the wider issues raised under articles 6 and 8. In dealings with grounds 2 and 3 I have been content to proceed upon a series of assumptions, and I emphasis that they are assumptions made without hearing any submissions to the contrary from the defendants, which are broadly to the effect that the facts ought to be tested against the Convention framework contended for by the claimants. Since their challenge fails even upon that basis it is unnecessary for me to examine the extent to which those assumptions as to the ambit of articles 6 and 8 are or are not well founded.[21]Against this factual and procedural background I now turn to consider the three grounds. Ground 1:[22]The proposition that a local planning authority, when determining a planning application, must take account of relevant factors and disregard irrelevant factors is well established. Since this is a case where an environmental statement was required, the Council could not lawfully grant planning permission "unless they have first taken the environmental information into consideration" (see regulation 3 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the Regulations").[23]The claimants' challenge has focused on one component, nitrogen dioxide, of air pollution. Air pollution is but one element, albeit a very important one, of the wider pollution issues, and pollution (although a relevant consideration for planning purposes) is but one of the many factors dealt with in the report. Having set out the background and described the site and the proposed development, the report summarises the environmental statement including its conclusions as regards emissions to air and then deals with government policy, the development plan, the responses of statutory and non-statutory consultees and the views of neighbouring district councils. Against this background the report then sets out the county planning officer's comments under numerous subheadings. Following a chapter on human rights the county planning officer draws his conclusions and makes his recommendation. The report is 25 pages long, excluding the list of recommended conditions, of which there were many, and the appendices.[24]Setting aside for one moment the sole point of criticism that forms the basis of ground 1, the remainder of the report is, in my judgment, an admirably clear, comprehensive and balanced explanation of the proposal before the committee. The claimants disagree, as they are perfectly entitled to do, with the county planning officer's conclusions on the planning merits. A minority of councillors also disagreed. The decision to grant planning permission was taken by a majority, but apart from ground 1 there could be and is no reasonable criticism of the report as a whole. It is, therefore, highly questionable whether an error, such as is alleged in ground 1 in respect of a particular aspect of one of the many topics considered in the report, could sensibly be said to invalidate the committee's decision to grant planning permission.[25]But before considering whether the report overall was so misleading that the court should intervene by way of judicial review, it is first necessary to answer the question: did the report inaccurately summarise the information about nitrogen dioxide and the standards of applicable thereto that was contained in the environmental statement?[26]Having read the report and the relevant parts of the environmental statement (the non-technical summary, the air quality chapter in the environmental statement and annex 4, the air quality assessment) I am left in no doubt that the answer to that question is no, it did not. The broader question does not, therefore, arise.[27]Mr Fordham pointed to the following passages in the report. In chapter 4 the environmental statement is summarised. Paragraph 4.7 is of critical importance and is as follows: "The combustion process will produce emissions to air. Regulation of emissions is through the IPC authorisation administered by the Environment Agency. The plant would be designed not only to meet existing UK and European standards but also to meet more stringent draft European standards. All relevant compounds were assessed. The findings showed that concentration of all emissions would be a small percentage of background levels and that total concentrations, including background levels, would not exceed the air quality standards set by the UK Government or the World Health Organisation . The assessment concluded that even applying assumptions of maximum exposure to the proposed incinerator's emissions and associated deposition of metals and dioxins there was no significant increase in health risk." (Underlining added).[28]The underlined passage is criticised as being inaccurate. It is not suggested that the remainder of the paragraph is inaccurate. "4.9 The application site has little ecological interest, and the air emissions from the facility will make a very small contribution to the annual mean concentrations of key pollutants. 4.12 In conclusion, the ES has not identified any significant adverse effects. There are some slight changes to the local environment during construction, which will be short term. In the long term the operational effects would be slight or negligible...."[29]Under the heading of "Consultations" we find this in paragraph 7.6:
"Southampton and South West Hampshire Health Authority comments that the Environmental Report appears to give a carefully considered and sound assessment of the direct effects of the energy recovery facility on the environment. The conclusion that there will be negligible health effects seems well founded, based on existing knowledge and the safety criteria quoted in the report."
[30]The county planning officer's comments under the subheading "Pollution and Health" included the following:
"9.29 Concern has been raised about pollution and health issues associated with incineration. In particular, it is alleged that minute quantities of certain pollutants represent a threat to health in the long term, particularly to the more vulnerable. 9.30 Regulation of the operation of the plant and its emissions to air, water and land has to be in accordance with the necessary European and UK standards. This is the responsibility of the Environment Agent through the IPC procedure. HWS has received an IPC authorisation for the operation of the proposed incinerator and the Agency does not object to the planning application. 9.31 However, the County Council has to take a view on this issue, particularly because it is raised as an objection to the planning application, and cannot rely solely on the views of the Environment Agency. 9.32 Therefore, the Southampton and South West Hants Health Authority and New Forest District Council's and Southampton City Council's Environmental Health Officers were consulted. The conclusion of these consultees is that there is no evidence that the past operation of an incinerator at Marchwood has led to an increase in health problems for the local population with respect to cancer, asthma or other respiratory diseases. Also, the background monitoring, dispersion modelling and emission standards included in the planning application and ES are appropriate and would not lead to a breach of air quality guidelines and standards, and so any risk to health would be negligible."
[31]Mr Fordham submits that the final sentence in that paragraph repeats what he says is the error contained in paragraph 4.7. "9.33 Given this evidence it should be noted that in line with the case R V Newbury District Council, ex parte Blackwell 1997 the County Council would be in a difficult position to refuse planning permission on air quality/health grounds. This is because the principal regulating authority has no objection, and there is no better and more authoritative technical evidence to the contrary."[32]Mr Fordham contends that the evidence was there. It was in the environmental statement properly understood. Other Material Considerations[33]9.39 Article 4 of the [Framework Waste] Directive places a duty on the County Council to pursue the objective of ensuring waste is managed without endangering human health and without using processes which could harm the environment and, in particular, risk to water, air etc. Objectors to incineration argue that this means no plant should be authorised if it could involve some risk to human or environmental interest. However, the Chief Executive advises this is not an interpretation supported by the Courts as all activities involve some risk. In any case the conclusion in this report is that the proposal does not pose a risk to the health of the community...."[34]When dealing with human rights issues the report said in paragraph 10.7:
"As set out in this report, the County Council does not accept that there are any general health effects resulting from this development. There may be an effect on certain very vulnerable individuals with existing health problems. There may also be an effect on individuals who are particularly anxious concerning the health risks associated with incineration. While it is believed these fears are unjustified and the number of people concerned likely to be small, this does need to be taken into account. However, it is considered that the public benefits of the development outweigh these potential effects on individuals."
[35]In conclusion the county planning officer said in paragraph 11.4:
"The Government considers that emissions from such plants are strictly regulated and that environment protection standards are sufficient to protect the environment and public health. It is considered that the emissions and operation of the proposed plant are capable of meeting existing, and more stringent proposed, European and UK standards. Consequently, there would not be an objection on the grounds of a significant health risk."
[36]The report has to be read as a whole in a common sense way and bearing in mind its underlying purpose, it is not a legal document or a treatise on air pollution. It is intended to assist lay councillors in reaching a decision on a planning application. Hence, it is no surprise that in paragraph 4.7 and other passages the report looks to the future, at what would happen if planning permission was granted:
"... total concentrations, including background levels, would not exceed the air quality standards set by the UK Government or the World Health Organisation."
[37]Construction of the incinerator is a substantial project. It was envisaged that it would not become fully operational until early 2004. The report did not say that there was no breach of WHO guidelines at present. It looked forward to consider whether any standards would be exceeded when the incinerator commenced operation. In doing so was the report failing to mention a significant factor, that there were locations in Southampton where the WHO guideline for nitrogen dioxide was being exceeded? It is clear from the environmental statement that the answer to this question is no. Mr Fordham placed particular reliance on a number of passages from annex 4 to the environmental statement, the "Assessment". But like the report, the environmental statement has to be read as a whole and it is necessary to look at the passages referred to by Mr Fordham in context to see what significance, if any, the authors of the environmental statement attributed to the existing breaches of the WHO guideline.[38]In this context the non-technical summary is particularly useful because it is intended to serve much the same function as the report: to summarise a great deal of highly technical information for the assistance of ordinary members of the public. The relevant passages in the non-technical summary which deal with air quality are these:
"8.1 Emissions to the air are a consequence of the combustion process for the ERF; the type and quantity of substances being emitted varies depending on the materials being burnt. The quantities at which pollutants may be emitted from the ERF is regulated by the Integrated Pollution Control authorisation...and must comply with the limits set by UK and European standards. This plant will be designed to meet not only the existing standards but also future standards which the Europe council is currently drafting. This is achieved through the adoption of controlled incineration and through the provision of the high performance technology for the clean-up of the exhaust gasses prior to emission. 8.2 An extensive programme of air quality monitoring (covering a 15 month period) was undertaken by HWS around the site of the ERF and at other sites in Hampshire. The purpose of this was to determine how air quality in general compared to existing air quality standards to assess whether the site would be suitable for the levels of emission associated with the ERF. The findings showed that the air quality at the site would not preclude the construction of waste management facilities of this type."
[39]I interpose to explain that the ERF is referred to in this judgment as the incinerator. "8.3 Modelling of the dispersion of the emissions from the chimneys was undertaken using computer models approved by the Environment Agency to determine what the ground level concentrations of the gasses would be under worst case scenarios. All relevant compounds were assessed including oxides of nitrogen, sulphur dioxide, particulate matter, carbon monoxide, hydrogen chloride, certain metals and dioxins and furans. The findings showed that the resultant concentrations of all substances would be a very small percentage of background levels and that the total concentrations of most substances, when background levels are included, would not exceed the air quality standards set by the UK Government and the World Health Organisation and would therefore not pose any significant risk to health."[40]It will be seen that the authors of the environmental statement chose to summarise their conclusions in respect of air quality in almost identical terms to those used by the county planning officer in paragraph 4.7 of the report. The report states that the emissions would be a "small" rather then a "very small" percentage of background levels but omits the qualification "most" before the word "substances". That omission might have been of some significance if the authors of the environmental statement had accepted that the exceptions to their general statement were important in the sense of posing a significant health risk. But there is no such suggestion in the non-technical summary. In this respect it will become evident that the non-technical summary is a fair reflection of the very detailed analysis set out in the main body of the environmental statement. The air quality chapter explains the methodology employed. Base line or ambient air quality was examined. Data was obtained from a number of sources, an HWS monitoring programme and other surveys. The relevant standards, including the WHO guideline, were identified and set out.[41]Paragraph 7.3.4 is a "Commentary on Background Air Quality" and is as follows:
"The data collected as part of the HWS background air quality programme, in conjunction with routine measurements made by DETR sponsored networks in Hampshire, indicate that existing air quality at and around the proposed Integra South West ERF site is such that air quality standards are not generally exceeded or approached. Data measured in the centre of the Southampton indicates that air quality targets for the year 2005 are not currently being met, but this is not an unusual situation for city centres in the UK. Importantly, in the context of an assessment of an ERF, concentrations of dioxins and metals in air, and also in the soil and grass, are comparable with what is known in similar locations in the UK. The available evidence suggests that the ERF is not proposed for an area with air quality problems of a scale which preclude waste management facilities of this type."
[42]Pausing there, there is no suggestion that the exceptions to the general position "air quality standards are not generally exceeded or approached" are of any significance.[43]The modeling exercise is described and there is then a health risk assessment and an assessment of impacts. Paragraph 7.6.2 deals with the operational phase as follows:
"The principal sources of emissions to atmosphere from the normal operation of the proposed ERF will be from the main 65 metre stacks and will include carbon dioxide, carbon monoxide, water vapour, oxides of nitrogen, sulphur dioxide, particulate matter, trace metals and organic compounds. In addition, there will be some vehicle movements associated with the operation of the proposed ERF. 7.6.3 Emissions from the Main Sacks. The most critical pollutant with respect to the NAQS air quality objectives and EU Directives is nitrogen dioxide. The NAQS (published in March 1997 and revised in January 2000) includes two objectives for NO2, a 1-hour mean (which allows 18 exceedances per year and is therefore equivalent to the 99.8th percentile) and an annual mean. Nitrogen dioxide is considered separately as the key pollutant, for short term (the maximum of 99.8th percentile 1-hour mean) and long term effects (with reference to the annual mean)."
[44]The results of the dispersion modeling in respect of nitrogen dioxide are considered and then the existing (ambient) air quality is described in these terms:
"NO2 annual mean background concentrations ranged from 24-36 ug m-3 at the background diffusion tube monitoring sites in Southampton (1995-96). At the HWS monitoring sites, the estimated annual mean concentrations from the monitoring ranged from 23-50 ug m-3. Given the year-to-year variability of the data and the small relative impact of the ERF on the annual mean concentrations it is unlikely that the emissions from the ERF would produce any measurable effect on annual mean ground level concentrations or lead to guidelines or limits to be exceeded."
[45]The conclusions of the health risk assessment are summarised in paragraph 7.8.1:
"As with any combustion process of this kind, there will be emissions to atmosphere of a range of pollutants. It is the responsibility of the developer to demonstrate that the emissions control technology and facility design including stack height are sufficient to render these pollutants harmless at ground level. To assess this effect quantitatively, it is necessary to understand the quality of the air into which the releases are to be made and how the releases disperse and dilute in the atmosphere. Ambient air quality in the region of the proposed site has been examined. The data collected as part of the HWS background air monitoring programme, in conjunction with routine measurements made by DETR sponsored networks in Southampton, indicate that existing air quality at and around the site is such that air quality standards are not generally exceeded or approached. The semi-urban location of this site means that it is subject to influences from traffic emissions. Consequently, concentrations of pollutants are relatively high when compared to rural background concentrations, particularly for those pollutants associated with vehicles, (eg NO2). Importantly, in the context of an assessment of an ERF, concentrations of dioxins and metals in air, and also in the soil and grass, are comparable with what is known of similar locations in the UK. The available evidence suggests that the proposed ERF is not proposed for an area with air quality problems of a scale which preclude waste management facilities of this type."
[46]The conclusions then deal with dust, with the height of the stacks, with carcinogenic risk and with vehicle exhaust emissions. The overall conclusion is as follows:
"In conclusion, the emissions from the proposed ERF will have a small impact on the local air quality. Ground level concentrations resulting from emissions from the proposed facility are unlikely to lead to breaches of ambient air quality standards and guidelines or cause a risk to health. A stack height of 65m for the main stacks is sufficient to ensure adequate dispersion of all pollutants."
[47]Albeit expressed in slightly different words, that summary conclusion in the environmental statement is, in my judgment, fairly reflected in paragraph 4.7 of the report. Although not strictly relevant for the purposes of the challenge under ground 1, the question under that heading being: did the report inaccurately summarise the environmental statement so as to lull members into a false sense of security as to the health risks posed by additional nitrogen dioxide emission, it may be asked why did the authors of the environmental statement consider that the existing breaches of the WHO guideline were not significant? The answer to that question is to be found in annex 4 of the assessment; that deals with the various emissions to air in considerable detail, singling out nitrogen dioxide for particular consideration. The standards and guidelines, including the WHO guideline, are set out, the HWS monitoring programme is described, as is the data obtained from the local authorities' monitoring programme and from an automatic monitoring site, the AUN site. The locations of the various sites are identified. It is unnecessary to rehearse the detail for the purposes of this judgment. Tables set out a comparison of the results obtained from the various sites with the relevant standards/guidelines. By way of commentary one finds the following passages in paragraph 3.2 of the assessment:
"The annual mean concentrations of nitrogen dioxide have been exceeded in some years at the the AUN site and all local authority sites, except the background sites in Southampton (on Pennine Road and Landseer Road). The National Air Quality Strategy contains predictions that the annual mean NO2 concentrations will decrease to 19-29 ug m-3 at the Southampton AUN site by 2005. These predicted reductions suggests that long-term NO2 NAQS guidelines are likely to be achieved by the deadline of 31/12/2005."
[48]In an earlier passage we find this:
"Comparison has also been made of the four week means to the annual average guideline, this gives a useful indication of magnitude but may not necessarily indicate exceedance or compliance. The four week concentration exceed the NAQS annual average objective at the SCCC site. Monitoring at the SCCC site was undertaken during the winter months (January and February) when concentrations of nitrogen dioxide are expected to be higher (due to lower atmospheric mixing heights in the winter). Therefore, the measurements made at SCCC during the four week period would not be representative of measurements made throughout the year."
[49]The remaining conclusions in the assessment largely repeat those found in the main volume of the environmental statement (see above). In summary, four-week concentrations measured by HWS were not felt to be representative of measurements made throughout the year, and so far as the exceedances at the local authority sites and the AUN site were concerned, they were heavily influenced by emissions from road traffic and there were predictions that these concentrations would decrease such that the long-term guidelines (40) "are likely to be achieved" by 31st December 2005.[50]Mr Fordham makes the point that the WHO guideline of 40 applies now. But the authors of the environmental statement and the county planning officer were understandably looking forward to see what the impact of the incinerator would be if planning permission was granted and operations began in 2004.[51]The environmental statement has to be read as a whole. It is plain that the authors were well aware of the WHO guideline and of the fact that there were some locations close to busy roads in Southampton where it was being exceeded. Because of the influence of emissions from traffic on the figures at those locations, the predictions showing a reduction in such emissions, and the negligible incremental effect of the incinerator at those locations, they concluded that the exceptions to the picture presented of general compliance with air quality standards were not significant and did not give rise to any concerns on health grounds. The report faithfully summarises both the letter and the spirit of the environmental statement.[52]Mr Watson does not agree with the conclusions drawn in the environmental statement in this respect, but his witness statement is dated 20th March this year and the material contained therein was not, therefore, available to the committee on 11th December last year. He was not asked to consider the environmental statement until after the commencement of these proceedings. There is a detailed response to his evidence from Mr Barrowcliffe, who was responsible for the air quality elements of the environmental statement. There is a further witness statement in response to Mr Barrowcliffe from Mr Watson. I leave open the question whether it is appropriate that such detailed technical evidence should be adduced in judicial review proceedings. There seems to be little, if any, dispute about the underlying data as to the likely NO2 emissions from the incinerator, or the levels of NO2 in the ambient air quality.[53]There is a difference of professional judgment as to the conclusions that should be drawn from that data. It is neither necessary nor appropriate for me to seek to resolve that dispute. The environmental statement was made available for inspection in accordance with the regulations. There was ample opportunity for those who disagreed with the conclusions in respect of air pollution to put their views in writing or to raise them at the public meeting. Prior to Mr Watson's evidence it was not suggested by any objector that the existing exceedances of the WHO guideline in respect of nitrogen dioxide were of any significance. Moreover, the report was made available prior to the meeting on 11th December. Although the first claimant made clear in his ten-minute submissions to the County Council that he opposed the grant of planning permission, there was no suggestion that the report inaccurately summarised the environmental statement in any way. I appreciate that the report was made available only a few days before the meeting, but by that stage the environmental statement had been available for some months. The objectors were well aware of all the issues and would have been able to spot any significant inaccuracy in the county planning officer's summary of the environmental statement without undue difficulty. For the sake of completeness, I should mention that Mr Watson in his evidence referred to a report by Southampton City Council, the "Stage III Review". The City Council has a programme for assessing air quality under the provisions of the Environment Act 1995. The Stage III Review Report said of nitrogen dioxide levels in the city:
"There is widespread exceedance of the 40 [annual mean] in the Redbridge/Millbrook area, the Avenue, City Centre, Bitterne Road and in the vicinity of the M27." "
The long running NO2 [nitrogen dioxide] Diffusion Tube survey at four sites in Southampton still show the kerbside site well above the annual mean standard, increasing slightly from 1997 to 1999. This kerbside location is residential and the NO2 diffusion tube is only 2 metres from the edge of a residential house, which faces on to the main road."[54]Mr Fordham submits that this new survey published in November 2000, after the environmental statement but before the special meeting, confirms the importance of the existing exceedances. In my judgment the report, on the face of it, appears to confirm the approach adopted in the environmental statement that existing high concentrations of nitrogen dioxide are largely traffic related, but my judgment on such a technical issue is of little consequence. What matters more is the attitude of the City Council armed with this new information as to ambient levels of nitrogen dioxide within the city. It did not alter its stance which was supportive of the application. The full environmental statement, including the information as to existing exceedances was of course available to members prior to the meeting. If anyone had thought that this point was of any significance it could have been raised at the meeting. Ground 2:[55]Were the claimants' article 8 rights engaged by the decision to grant planning permission? Making every assumption in the claimants' favour as to the possible ambit of article 8 the answer must be no. The decision of the European Court of Human Rights in Lopez Ostra v Spain [1994] 20 EHRR 277 is an illustration of the proposition that there may indeed be circumstances where environmental pollution is so severe that it does infringe article 8 rights even though health is not seriously endangered (see paragraph 49 - 51 of the judgment).[56]The facts in that case were extreme. The applicants lived 12 metres away from a waste disposal plant that released "gas fumes, pestilential smells and contamination" which were so bad that they had caused local residents in the area to be temporarily evacuated by the local council and had in due course forced the claimant to abandon her home.[57]In cases concerned with environmental pollution there is bound to be a broad spectrum of actual or potential impact on the quality of life. In Asselbourg and Others v Luxemburg Appeal No. 29121/95 dated 29th June 1999 the applicants were complaining of the polluting effects of producing steel from scrap rather than iron ore. Declaring the application inadmissible the court said this:
"It is only in wholly exceptional circumstances that the risk of a future violation may nevertheless confer the status of "victim" on an individual applicant, and only then if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally: mere suspicions or conjectures are not enough in that respect. In the instant case, the Court considers that the mere mention of the pollution risks inherent in the production of steel from scrap iron is not enough to justify the applicants' assertion that they are the victims of a violation of the Convention. They must be able to assert, arguably and in a detailed manner, that for lack of adequate precautions taken by the authorities the degree of probability of the occurrence of damage is such that it can be considered to constitute a violation, on condition that the consequences of the act complained of are not too remote...."
[58]Does the claimants' case amount to anything more than "mere suspicions or conjectures"? Mr Fordham submitted that the following propositions summarised the factual background:(1) There is evidence of existing breaches of the WHO guideline for nitrogen dioxide near busy roads. Those include busy roads running through residential areas.(2) The levels of nitrogen dioxide at the claimants' homes are likely to be compliant with the guideline given that the claimants' homes are at some, albeit not a very great distance, from busy roads.(3) There will be a further deterioration due to emissions from the incinerator in some residential areas in the city of up to .5. At the claimants' homes the addition is likely to be of the order of .1 to .2.(4) On the basis of the material presently available the claimants do not contend that this increase would cause the WHO limit of 40 to be exceeded at their homes.[59]Mr Fordham invites me to adopt a broad approach to home and family life. He submits that it would be unreasonable to confine consideration of the effects of the emissions to the claimants' homes because, in reality, they will move about the community and have to use busy roads in the vicinity of their homes. He refers to Niemietz v Germany [1993] 16 EHRR 97 , in which a liberal interpretation was given to the meaning of private life.[60]Accepting Mr Fordham's summary of the factual background and assuming that it may be appropriate in some circumstances to look beyond the claimants' front doorsteps, because to enjoy family life they may, for example, take their children to local schools or to the playground or socialise with friends in the immediate locality, can it be said that there is "reasonable and convincing evidence" that their quality of life would be so directly effected by the incinerator proposal as to engage article 8? The answer to that question has to be no, even if one strictly applies the WHO guideline, ignoring the fact that it is only a guideline, not a mandatory requirement, and that a breach of the guideline does not automatically mean that there is serious pollution, much less that there is any significant danger to health.[61]The claimants' is no more than a generalised concern as to the effects of the incinerator in terms of increased nitrogen dioxide emissions. Such generalised environmental concerns do not engage article 8, which is concerned with an individual's right to enjoy life in his own home. Ground 3:[62]It is clear from the House of Lords' decision in the Alconbury case that planning decisions may amount to a determination of a party's civil rights for the purposes of article 6(1). The question is whether this decision can be said to be determinative of these claimants' civil rights. If it is not, the entitlement to a "fair and public hearing" does not arise.[63]Mr Fordham accepts that there has to be a sufficient nexus between the claimants' rights and the decision. In Barmer-Schafroth v Switzerland [1997] 25 EHRR 598, a case concerning Swiss nationals who lived within five kilometres of a nuclear power station, the court said this at paragraph 32:
"Under the Court's case law, for Article 6(1) in its "civil" limb to be applicable, there must be a "dispute" over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The "dispute" must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6(1) into play."
[64]A similar approach is to be found in Zander v Sweden [1993] 18 EHRR 175. In paragraph 22 of its judgment the court said:
"The Court reiterates that, according to the principles enunciated in its case law, it has first to ascertain whether there was a dispute ( contestation ) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question."
[65]In that case the applicant's land was adjacent to a waste tip. His well, which supplied his drinking water, was poisoned by cyanide leaking from the tip, and so he had to be supplied with water from an alternative municipal source. It is not difficult to see why the court concluded that article 6(1) was engaged on the facts of that particular case.[66]The contrast with the present case could not be more stark. I asked Mr Fordham which civil rights of the claimants' were in dispute. He referred to their entitlement to participate in the planning process and to benefit from the WHO guideline relating to air pollution. In those respects the claimants are no different to most, if not all, of the citizens of Southampton. Even if it is assumed that close proximity to and/or likelihood of significant impact from a proposed development may bring an objector's civil rights (unspecified) into play, there is no "genuine and serious" dispute here for the reasons explained under grounds 1 and 2.[67]The grant of planning permission is not "directly decisive" of such rights as the claimants may have. The claimants connection with the decision to grant planning permission is tenuous at best, and the environmental consequences for them on the agreed factual information are remote in the extreme (see ground 2). Thus the question of a fair and public hearing does not arise, but even if it did it should not be assumed that arranging a public inquiry would have been the only way in which such a hearing could have been provided.[68]The special meeting was held in public. The agenda was available to members and to the public beforehand. In deciding whether there has been a breach of article 6(1) the procedures have to be looked at in their entirety, including the earlier opportunities to make representations during the consultation process and the subsequent right to seek relief by way of judicial review if the Council errs in law. A"fair" hearing does not necessary require an oral hearing, much less does it require that there should be an opportunity to cross-examine. Whether a particular procedure is "fair" will depend upon all the circumstances, including the nature of the claimant's interest, the seriousness of the matter for him and the nature of any matters in dispute. As indicated above, the claimants' interest in this matter is remote and on the evidence it could not be said that the consequences of the decision to grant planning permission will be significant, much less serious for them.[69]Mr Fordham drew a distinction between matters of planning policy which he accepted, in the light of the House of Lords' decision in Alconbury , could be decided through the democratic process, the questions of legality, which can be determined on an application for judicial review of a decision to grant planning permission, and questions of fact. Where there was a dispute falling into the last category he submitted that "the quasi-judicial safeguards" of a public inquiry were necessary in the interests of fairness. Although the Town and Country Planning Act did not make provision for a public inquiry prior to the grant of a planning permission, it was always open to the planning authority to arrange a non-statutory inquiry prior to determining an application.[70]Assuming for present purposes that it was open to the County Council to arrange to hold a non-statutory inquiry, were there any significant factual disputes to be resolved at such an inquiry? I have looked at the lengthy correspondence between the claimants' solicitors and the County Council prior to the special meeting, at the summary of objections set out in the report and at the text of the first claimant's ten-minute speech to the Council. There were certainly disputes as to matters of policy, as to the adequacy of the HWS research and as to the implications to be drawn from information about other plants, including the ESSO refinery at Fawley. As summarised in the report, the disputes are not really disputes about facts, but disputes about the implications which should be drawn, in policy terms, from the available facts. Critically there was no suggestion that the environmental statement erred in its treatment of the background levels of nitrogen dioxide. As I mentioned when dealing with ground 1 above, Mr Watson and Mr Barrowcliffe are not in dispute about the underlying data. They disagree as to the conclusions to be drawn from that data. These are very much questions of professional judgment and I can see no reason why they could not have been adequately explored in written representations following publication of the environmental statement.[71]Given the nature of their interest and the nature of the points in issue, the opportunity to make detailed representations during the public consultation process and to address the committee, I am satisfied that even if article 6(1) did entitle the claimants to a fair and public hearing, the procedures adopted by the County Council when looked at in totality did afford them just that opportunity. For all of these reasons I formally grant permission to apply for judicial review, only to dismiss the substantive application. MR STRAKER QC : In those circumstances may I first just mention one matter? MR JUSTICE SULLIVAN : Yes. MR STRAKER QC : Against the possibility that your Lordship is subsequently asked to approve the transcript. MR JUSTICE SULLIVAN : Yes, of course. Yes, please do. MR STRAKER QC : It relates to the question that your Lordship asked of me yesterday and hence to an observation made about five minutes or so into your Lordship's judgment. MR JUSTICE SULLIVAN : Yes. MR STRAKER QC : It is the availability to the public of the papers for the hearing, and your Lordship referred to three working days available. MR JUSTICE SULLIVAN : Yes. MR STRAKER QC : Your Lordship may care to consider inserting the words "at least before three working days" because in some cases the material would have been available to the public in advance of those three working days. As I say I simply mention the matter for your Lordship's consideration, nothing in particular turns upon it, but I thought it right to make that observation. MR JUSTICE SULLIVAN : Thank you. I am not sure that I shall bother, no discourtesy intended, but I think Mr Fordham told me that the meeting was on the Monday and he told me that the claimants got it on the Wednesday before. MR FORDHAM : It was the other way around; he got it on the Monday for a meeting that was on the Wednesday, so it was two days. MR JUSTICE SULLIVAN : I was puzzled by that actually, because if one looks at the face of the report, I have filleted my copy of the bundle, it said on it "Monday 11th December", yes, date and time "Monday 11th December 2000 at 10.30 am". Now I have not gone back and checked my diary for 2000 but I assume that is right. MR STRAKER QC : My Lord, yes. Well, my Lord, it is not a matter which I need to press, in any sense of the word. MR JUSTICE SULLIVAN : No, thank you very much. MR FORDHAM : Leave it as it is, my Lord. I am told he only had it two days before, but there is no need MR JUSTICE SULLIVAN : I do not think there is any difference then, is there? Well, not that much, not in terms of working days anyway. Right. MR STRAKER QC: My Lord, that having been disposed of, the other matter which I would raise would be this: I would respectful ask for an order for costs against the claimants in respect of this matter to include the costs reserved by Harrison J. The position here is that the claimants received the benefit of public support for this litigation and so in those circumstances I would ask your Lordship to make an order for costs, allowing the receiving party, that is to say Hampshire, to make an application to determine the costs that the paying party should pay, the costs to be assessed and that application to be made in due time. MR JUSTICE SULLIVAN : I am sorry, I am not sure I am following the end of it. The benefit of public support? Frankly, I simply have not looked at, obviously, any questions of costs or who is supported and so forth, can you just help me about that? What do you mean? MR STRAKER QC : Well, my Lord, they have a certificate entitling them to what once would have been called legal aid and is now called community legal support. MR JUSTICE SULLIVAN : Right. MR STRAKER QC : So the consequence of that is that in order for costs to be recovered from them it has to be decided what would be a reasonable amount for the paying party to pay, and that depends upon consideration of all the circumstances, including financial resources of all the parties to the proceedings and their conduct in connection with the dispute. That, of course, is information which your Lordship does not have. MR JUSTICE SULLIVAN : No. MR STRAKER QC : And so reading from the notes to the Civil Court Practice the usual course, it is suggested, will be for the court simply to make an order for costs under the relevant section, which is section 11 of the Access to Justice Act, and allow the receiving party, that is to say Hampshire in this case, to make an application to determine the costs that the paying party should pay. MR JUSTICE SULLIVAN : Can you just give me the reference in the White Book? MR STRAKER QC : I am reading, in fact, from the Civil Court Practice in the Green Book, page 593, but there will be a similar provision – oh, Mr Corner shakes his head negatively, but that is the position, my Lord, as taken from the rules. I can pass in the extract for your Lordship. MR JUSTICE SULLIVAN : Yes, thank you. MR STRAKER QC: It is section 11 of the Access to Justice Act. MR JUSTICE SULLIVAN : Yes. Right. Thank you. I understand that application, yes. MR STRAKER QC : I am much obliged. MR JUSTICE SULLIVAN : Let us see if there are any other applications made against you, Mr Fordham, and then you can deal with them all on a rolled out basis. MR CORNER : My Lord, I have an application on behalf of the Secretary of State. As you said in your judgment we were invited, pursuant to the order of Harrison J, to attend, given that in the proceedings a declaration of incompatibility was asked for. My Lord, it is, of course, right that in the skeleton argument, post the Alconbury decision in the House of Lords, it is stated by the claimants that there is no question of declaration of incompatibility. My Lord, however, I would say this that it was wholly reasonable, in my submission, for the Secretary of State to come and seek to assist your Lordship having regard to the submissions which were, in fact, made, in that even if not strictly asking for a declaration of incompatibility, and it was not entirely clear, even if not, however, they were seeking to make suggestions as to how a local authority should conduct its determination of planning applications. My Lord, the suggestion of a public inquiry really would make radical changes which are not provided for in the current legislation to the administration of the Town and Country Planning system, for which the Secretary of State is responsible. MR JUSTICE SULLIVAN : Yes. Thank you, Mr Corner. MR CORNER : Thank you. MR JUSTICE SULLIVAN : You are keeping quiet, are you, Mr Tromins? MR TROMINS : My Lord, I do not propose to make any application for costs for Hampshire Waste Services. MR JUSTICE SULLIVAN : Yes, thank you. Mr Fordham, I do not need to trouble you about the Secretary of State's application for costs. MR FORDHAM : My Lord, I do not resist that the defendant should have an order for costs on the usual legal aid terms. I am afraid you are one step ahead of me in having both the page reference and understanding the applications being made. MR JUSTICE SULLIVAN : Effectively, you are asking for the usual order and you would be embarrassed if I said to you what is the usual order. MR FORDHAM : One remembers the times of the usual compulsory order in the Winding up Court. MR JUSTICE SULLIVAN : Yes. MR FORDHAM: And of living in dread of that question. MR JUSTICE SULLIVAN : Yes, terrible. MR FORDHAM : But, my Lord, if it is an order sought on the usual legal aid terms then I do not resist your Lordship making that order; if it is some special application for some special order, then I am not in a position yet to understand that application or respond to it. MR JUSTICE SULLIVAN : Yes. MR FORDHAM : We all think it is the usual legal aid term, my Lord. MR JUSTICE SULLIVAN : Right. Yes. I am not going to reveal my ignorance by exploring the matter any further. Thank you very much. MR FORDHAM : May I ask for a legal aid taxation of the claimants' costs; I am sure that is the wrong phrase now, but the equivalent. MR JUSTICE SULLIVAN : Yes. MR FORDHAM : My Lord, I make no application for permission to appeal. MR JUSTICE SULLIVAN : Thank you. MR FORDHAM : But I would ask your Lordship, if you would please, to direct that there be an expedited transcript in this case, that is because, not surprisingly, post Alconbury there are a number of article 6 type cases and it will be of interest for people in those cases to see what your Lordship did say and what your Lordship did not say in relation to that issue and, as I understand it, a speedy transcript can be provided if your Lordship simply directs that that be appropriate. MR JUSTICE SULLIVAN : It can, yes. I have to say I wonder how this decision which turns so much on the facts will be of interest beyond the fact of the four columns of this case but I see Mr Corner rising, possibly to support you, I do not know. MR CORNER : I am specifically instructed on behalf of the Secretary of State to support that submission by my learned friend. MR FORDHAM : I would say precisely so that we can see what your Lordship has decided. It may be that this case is going to be relevant in other cases and it is going to be necessary to see what your Lordship has done. I would agree that your Lordship has decided this case entirely on the facts. MR JUSTICE SULLIVAN : Yes, I am not aware of any plans – maybe the mere fact that there are not any might be of interest I suppose. MR FORDHAM : I did not want to put it that way, but would your Lordship make a direction. MR JUSTICE SULLIVAN : Right. Then as I have indicated permission granted to apply for judicial review, but the substantive application is dismissed. The claimants to pay the County Council's costs, subject to the usual legal aid order. The claimants to have whatever is the modern equivalent, and no doubt the associate will know, of legal aid taxation. There being no application for permission to appeal, the two remaining things are expedited transcript and the Secretary of State application for costs. I am happy to order an expedited transcript. I do not think we mean by that super expedition, but get it to me as fast as possible, when I say super expedition there are some cases when people want to rush off to the Court of Appeal tomorrow, so it is not that sort of expedition. So far as the Secretary of State's application for costs is concerned, I quite understand that it may well be said it was appropriate for the Secretary of State to appear; on the other hand, one has to keep these things in proportion following Alconbury it must have been pretty clear that the writing was on the wall for any sort of certificate of any sort of declaration of incompatibility. It was plain in the claimants' skeleton that one was not going to be sought and it does seem to me that the remaining issues under article 8 and 6, although it was very helpful to have Mr Corner, could have been dealt with by the County Council. So I think the Secretary of State, the new Secretary of State, will just have to put it down to the burdens of high office. Right. Anything else? MR FORDHAM : My Lord, no. MR JUSTICE SULLIVAN : Thank you all very much indeed. Thank you, Mr Read, as well.

Cited in 9 later judgments