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Legitimate expectations

Cornwall Waste Forum v Secretary of State for CLG
[2012] EWCA Civ 379


This case is notable for its discussion of the issue of legitimate expectations in the planning and environmental context. It can be summarised briefly. The case was an appeal against the decision of Collins J who had heard a s288 appeal against the decision of the Secretary of State to grant planning permission to the appellant for the construction of two energy-from-waste plants. The Environment Agency had issued environmental permits for the proposed plants having concluded that no appropriate assessment was required.

More detail

One of the issues was whether the Claimant had a legitimate expectation, derived from the pre-inquiry procedure and the course of the inquiry itself, that the Secretary of State’s Inspector would himself deal with the issue of whether an appropriate assessment was required as part of the process of arriving at a planning decision on the merits of the proposal as a whole.

In the event the Inspector adopted the Environment Agency’s position on the matter. It was said that this amounted to an unjustified breach of the legitimate expectation. Collins J agreed.

Carnwath LJ with whom Moore-Bick and Arden LJJ agreed, allowed the appeal. Although the “clear expectation” of all at the inquiry was that the Inspector, and the Secretary of State, would deal with the appropriate assessment issue, Carnwath LJ held that this did not amount to a justiciable legitimate expectation for three reasons.

First, the Inspector had no authority to commit the Secretary of State to the form of his decision or to an election under reg. 65(2) of the Habitats Regulations 2010. This regulation provides that the Secretary of State does not need to undertake an appropriate assessment if one has been carried out by another authority.

Secondly, the representations reflected the circumstances at the time that they were made. Those circumstances were that it was thought that the question of appropriate assessment depended on a range of factors that were not solely concerned with emissions from the stack. Since these potential additional factors had not been addressed by the Environment Agency it was thought that the Inspector would need to address them. By the end of the inquiry those representations lost their purchase as it had become clear that the only relevant issues were ones that were within the competence of the Environment Agency.

Thirdly the Secretary of State was entitled to be guided by the position adopted by an expert relevant agency such as Natural England or the Environment Agency. It was only if their decision could be shown to be flawed in some way that the decision to rely on the guidance would become susceptible to challenge. Therefore the legitimate expectation, had there been one, would have been given effect to as the Secretary of State had decided the issue, albeit by reference to the position adopted by the Environment Agency.

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