Rookery South Energy from Waste Facility was the first case to go through the infrastructure planning system introduced by the Planning Act 2008, and it was my privilege to represent two of the parties, the local authorities. It is however also proving to be the slowest – perhaps it is inevitable that the first flushes out problems in the system. In this case the unexpected twist was the ability to refer the decision to the rarely used Special Parliamentary Procedure.
Last week, the High Court had to rule on a legal challenge arising out of the SPP; it was alleged that the environmental statement, drawn up in 2010, was effectively out of date for the purposes of the decision under the SPP in February 2013.
Mr Justice Mitting’s judgment includes a couple of wry comments which are worthy of a wider audience. I enjoyed this opener in paragraph 3, describing the new system:
“Recognising that delay in the execution of major infrastructure projects has the potential to cause significant harm to the national economy. Parliament enacted the Planning Act 2008 to speed things up. In section 14(1) it identified Nationally Significant Infrastructure Projects (“NSIPs”), thereby avoiding, by the ordering of the words, a neater acronym.”
More serious however is his comment at paragraph 11.
“A challenge is brought to the order and to the Secretary of State’s decision to refuse to revoke it. The informed observer of planning litigation will be unsurprised to learn that the challenge has nothing to do with the underlying merits of the case, but with two familiar issues:
(1) The adequacy of the Panel’s reasons for including provision for compulsory acquisition of the benefit of the restrictive covenants enjoyed by the claimants;
(2) A contention that the Environmental Impact Assessment relied on by the Commission was out of date when Parliament approved the order.
The underlying purpose of the claim is not to improve public understanding of the Commission’s decision, or to ensure that the habitats of species of birds and mammals is protected, but to protect the claimant’s commercial interest in waste processing sites, which it owns, which have been, or might be, brought into operation. Local authorities have not joined in this claim.”
Well we know what he is getting at, and indeed it can be frustrating that challenges are brought which have little to do with the actual merits, and concern commercial interests. But this surely misses the point. It is important that decisions are properly taken, in accordance with the rules and procedures which are set out. So challenge on procedure is quite properly available. As David Pannick QC pointed out in an article in the Times on 20th February this year, commenting on the changes in judicial review which would allow judges to refuse to grant a remedy if the decision under challenge would be the same when remitted for redecision : “Because judicial review exposes errors of law and abuses of power, it encourages high standards of government administration (national, local and in public authorities) and deters such defects in the future.”
The learned judge’s criticism is also that the case was brought to protect commercial interests. But most legal cases are there to protect some private interest. There are not so many altruists out there who want to bring cases just to ensure the lawful procedure is followed. Some planning cases are of course sometimes brought by bodies such as the RSPB solely to protect environmental interests, but, a significant number are brought by those who fear the economic and personal effects of a development on their lives and where they live. Whether that is a proper attitude depends on your philosophy, but it cannot normally be a misuse of the legal process.
FCC Environment (UK) Ltd v. Secretary of State for Energy and Climate Change and Covanta Rookery South Ltd. [2014] EWHC 947 (Admin)
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