ON APPEAL FROM QUEENS BENCH DIVISION
HIS HONOUR JUDGE WAKSMAN QC
(sitting as a High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
MR JUSTICE WARREN
| Barbara Burridge
|- and -
|Breckland District Council
|- and -
Greenshoots Energy Ltd
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John Hobson QC and Ned Helme (instructed by Michael Horn, Solicitor to Breckland District Council) for the Respondent
Alex Goodman (instructed by Metcalfe Copeman and Pettefar) for the Interested Party
Hearing date : 15 January 2013
Crown Copyright ©
Lord Justice Pill :
"The scale and nature of the proposed development, and the character of the surrounding area, are such that it is considered that the proposed development would not be likely to result in significant effects on the environment.
It is considered that the main environmental effects of the proposal would relate to: i) its effects on the character and appearance of the rural landscape, and ii) its impact of local amenity due to noise and odour emissions. It is considered that any such effects would not extend beyond the local area and would not be complex in nature. No sensitive areas would be affected by the proposed development.
It is considered that the proposed development would not have significant effects on the environment. Accordingly, this screening opinion finds that the proposal does not constitute EIA Development and that Environmental Impact Assessment is not required in this instance."
The appellant's case is that a further screening opinion should have been adopted before the two applications were placed before the committee on 31 October 2011.
The statutory scheme
"This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment."
Article 1(2) provides, in so far as is material:
"For the purposes of this Directive:
- The execution of construction works or of other installations or schemes,
- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources."
"1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.
2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive."
"1. Subject to Article 2 (3), [not relevant in this case] projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2 (3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination,
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.
4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public."
"3. Energy industry
(a) Industrial installations for the production of electricity, steam and hot water (projects not included in Annex I);
(b) Industrial installations for carrying gas, steam and hot water; transmission of electrical energy by overhead cables (projects not included in Annex I)."
"any area occupied by apparatus, equipment, machinery, materials, plant, spoil heaps or other facilities or stores required for construction or installation."
"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
Schedule 3 provides the selection criteria in Annex III of the Directive, already summarised.
(a) a local planning authority adopt a screening opinion; or
(b) the Secretary of State makes a screening direction under these Regulations;
to the effect that development is EIA development -
(i) that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and
(ii) the authority or the Secretary of State, as the case may be, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (i) to the person who proposes to carry out, or who has carried out, the development in question."
Under regulation 4(8), the local planning authority may ask the Secretary of State to make a screening direction.
"Where it appears to the relevant planning authority that -
(a) an application which is before them for determination is a Schedule 1 application or Schedule 2 application; and
(b) the development in question –
(i) has not been the subject of a screening opinion or screening direction; or
(ii) in the case of a subsequent application, was the subject of a screening opinion or direction before planning permission was granted to the effect that it is not EIA development; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations.
Paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."
The judgment below
Submissions and authorities
"The question whether the development is of a category described in either schedule must be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question whether it 'would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location' should, in my judgment, be answered rather differently. The proposal should not then be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development. This approach appears to me appropriate on the language of the regulations, the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, developers could otherwise defeat the object of the regulations by piecemeal development proposals."
"It is plain that the 1999 Regulations are geared to the actual application for development consent. That that is a legitimate approach for a Member State to adopt seems to me to be indicated by the definition of 'development consent' and the references thereafter to such consent in the amended Directive. It also accords with the observations of the Advocate –General in paragraphs 67-69 of his Opinion in Naturschutz. In my view there is no justification for treating the word 'development', as used repeatedly in the 1999 Regulations, as though it means 'project' of some wider kind: and the Regulations are clear that the relevant assessment is to be made by reference to the application for planning permission. Indeed were it otherwise, there could be difficulties in any given case in assessing just what 'project' might be involved or, even if there was some wider project in mind, just what form it might take."
"Lastly, as the Court has already noted with regard to Directive 85/337, the purpose of the amended Directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the amended Directive see, as regards Directive 85/337, Commission of the European Communities v Ireland (Case C-392/96)  ECR 1-5901, para 76 and Abraham v Région wallonne (Case C-2/07), 28 February 2008, para 27."
"57. It is apparent, however, that third parties, as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary.
58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority's screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.
59. In that regard, effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However, where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request." (authority cited)
It is not disputed that the appellant had requested a further screening opinion in this case.
". . . I do not think that course is properly open to us. The difficulty, as it seems to me, is that the adoption of a screening opinion, if one is required, is part of a process that leads eventually to the grant or refusal of planning permission. If any step in that process is legally flawed, the process as a whole is flawed and the grant of permission must be quashed. Accordingly, I think that there is no alternative but to grant the claimants the relief they seek."
"Screening Directions are requested in respect of four planning applications for development near the village of Kenninghall, as listed below:
i. Proposed renewable energy plant: 3PL/2012/0737/F
ii. Proposed CHP plant: 3PL/2012/0738/F
iii. Proposed poultry hatchery extension: 3PL/2011/1100/F
iv. Proposed feed bins: 3PL/2012/0156/F
Copies of the planning applications are attached to this letter. Full details of all associated documents, including plans, supporting documents and relevant correspondence can be viewed via the Council's website . . ."
It was stated that application iv. had been withdrawn. Reference was made to other proposals for development nearby, a proposed solar farm and a proposed poultry farm.
"By way of further background to these requests, I can advise as follows. The planning applications referred to above are causing major concern to many residents in the local community, and there has been a ground swell of criticism of the Screening Opinions adopted by the Council. Judicial review proceedings are on-going in respect of two related planning permissions granted by the Council in November 2011 for the proposed renewable energy plant and CHP Plant. Whilst the claim has been dismissed in the High Court, leave has been granted for this matter to be heard in the Court of Appeal. In the light of these particular circumstances, the further independent scrutiny of the proposals that Screening Directions would provide would be welcomed by the Council. It is hoped that this will enable the applications to proceed to determination with the confidence of the local community."
The motive is, with respect, admirable. At the same time, in response to an objector, the council by Mr Moys stated that applications 737 and 738 were "essentially the same" as had been approved by the council in November 2011 for 1372 and 0445. At that time, as before this court, the council was erroneously claiming that, for EIA purposes, each of the proposals could be considered independently. In his statement served on the day of the hearing before the judge, on which the council relies, Mr Moys did not think it necessary to mention the hatchery application which was by then already before the council.
"The applicant's own design and access statement accepts that 'The proposal is not a stand alone project'. The Secretary of State also accepts that the renewable energy plant cannot be treated as a separate proposal to that of the related combined heat and power unit and hatchery extension, the subjects of separate planning applications and EIA screening requests. The Secretary of State is satisfied that none of these applications can proceed without the other. In his opinion, the potential for cumulative environmental impacts, from all the related developments in the vicinity are such as to suggest that significant effects are likely. EIA is therefore required.
Accordingly, in exercise of the powers conferred on him by regulation 6(4) of the 2011 Regulations, the Secretary of State hereby directs that the proposed development described in your request and the documents submitted with it, is 'EIA development' within the meaning of the 2011 Regulations. This letter constitutes the statement required by regulation 4(7)(a)."
The direction in 738 (0445) was in the same terms, with the necessary change in nomenclature.
Lord Justice Davis :
i) A very detailed screening opinion, for the purpose of the 1999 Regulations, was adopted and issued by the council on 25th March 2011, by reference to the original 1372 planning application. No criticism was then, or is now, made of its reasoned conclusion that the development proposed under that application would not be likely to result in significant effects on the environment and that an EIA was not required.
ii) The appellant has not herself given any substantive reason why the outcome decided on by the council on 31st October 2011 might have been different had only a further formal screening opinion been produced. No hitherto unidentified adverse environmental impact is alleged to emerge out of the combined environmental effects of the two applications, 1372 (as amended) and 0445, if taken together. I am not saying that the appellant was legally obliged to: but it is at least a point of comment all the same.
iii) It was accepted before the judge below, and as he records, that the amended 1372 application (which excluded the CHP plant) did not of itself call for a further screening opinion. It was also accepted before us that, subject to the point about the area of the proposed pipeline as raised in ground 2, application 0445 would not of itself have constituted schedule 2 development: and so would not of itself have called for a screening opinion by reason of Regulations 7(1) and 5(4).
iv) No one can suggest, or does suggest, that the interested party here was in any way trying to manipulate the system.
"61. In the light of the foregoing, the answer to the first question is that article 4 of Directive 85/337 must be interpreted as not requiring that a determination, that it is unnecessary to subject a project falling within Annex II to that Directive to an EIA, should itself contain the reasons for the competent authority's decision that the latter was unnecessary. However, if an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the determination or the relevant information and documents in response to the request made."
"In my judgment, the decision not to have an EIA is a significantly different kind of decision from a refusal or grant of planning permission. The reasons for a preliminary administrative decision whether or not to have an EIA do not have to satisfy the same standards of information and reasoning as would apply to a substantive decision on a planning application. The degree of "grappling" is different, more provisional and less exacting. What matters with a decision of this character is that the reasons for it that were made available to the claimants suffice to satisfy the criteria in the passage cited from Mellor."
i) First, the point was initially raised on the basis of an asserted misunderstanding on the part of Warren J. It had not occurred to me that there had been any misunderstanding on his part, on an objective reading of his then draft judgment; but more importantly Warren J has confirmed there was none. That being so, I would, for myself, be disinclined to entertain on the part of the appellant further materials, and expanded and new arguments, over and above those advanced at the hearing before this court.
ii) Second, even having considered such written submissions and materials as have been provided, I would see no sufficient reason to depart from what I have said in paragraph 90 above. In my view the position regarding the Secretary of State's decisions was and remains not clear. The two direction letters of 10 December 2012 previously produced at the hearing before this court relate to planning applications apparently corresponding to the two applications 1372 and 0445. But there were also, as the court had been told at the hearing, decisions of the Secretary of State of that same date on two other planning applications relating to the hatchery extension and to the installation of a solar unit, which last installation we gather relates to a site of some size. (This court has not itself seen these four further planning applications.) In the letters of 10 December 2012 it was stated that, in the Secretary of State's opinion, the "potential for cumulative environmental impacts from all the related developments in the vicinity" were such as to suggest that significant effects were likely. Miss Thornton, in her most recent written reply argument, now also seeks to say that a planning application for the hatchery extension had in fact been lodged with the council in October 2011 and was extant at the time of Mr Moys' witness statement, although it was not referred to by him in his witness statement. She further seeks to argue that the decision letters of the Secretary of State of 10 December 2012 relating to the planning applications corresponding to 1372 and 0445 did not include reference to the solar installation unit and thus that, so she says, the solar installation unit had not formed part of the consideration of the "cumulative environmental impacts from all the related developments in the vicinity". Mr Hobson and Mr Goodman strongly disputed that in their own further materials and written observations which they have since supplied. Certainly in the Secretary of State's direction letter of 10 December 2012 relating to the solar installation unit – as since provided to the court – the Secretary of State makes clear that that application has been considered in combination with the applications for the combined heat and power unit, renewable energy plant and hatchery extension (described in that letter as "related development proposals"). In such circumstances these new aspects would, to my mind, have needed yet further argument and, potentially, yet further evidence on issues not developed by the appellant before us at the hearing.
iii) The position on these aspects thus – to me – remains unclear, even leaving aside any other points (and the council and interested party have indicated a number of them) querying the basis on which the Secretary of State actually reached these decisions as recorded on the face of the letters. At all events, I think that none of this further material of itself requires displacement of what, in my view, was the judge's entitlement in the circumstances of this particular case: namely to rely as he did on Mr Moys' witness statement of 18 April 2012 and the preceding letter of 19 January 2012.
Mr Justice Warren :
The first ground of appeal
"The Court of Justice has held that the national court's obligation is to interpret domestic legislation, so far as possible, in the light of the wording and the purpose of a directive in order to achieve the result pursued by the directive and thereby comply with Community obligations….. It is sometimes also referred to as the principle of conforming interpretation."
The second ground of appeal
The third ground of appeal
"5. ………I can confirm that I gave consideration to whether further screening was necessary. I concluded that further formal screening was not necessary. In this context, I was of the opinion that the proposed removal of the CHP plant and its replacement by small-scale equipment could not reasonably be expected to result in any increased or different environmental impacts. Similarly, I considered that the proposal to relocate the CHP Plant from its originally proposed site in a relatively quiet and isolated rural location to a nearby site within a substantial complex of buildings used as commercial feed mill could not reasonably be expected to result in additional or increased environmental effects beyond those considered in the original Screening Opinion. Due to their scale and nature, I considered that neither the proposed new underground pipeline nor the new equipment adjacent to the AD plant would result in any significant effects. In addition, I considered that the development proposed under [application 0445] was not Schedule 2 development on account of its small scale.
6. Had I produced a formal written Screening Opinion at the time on behalf of the Council (or indeed subsequently) it would have concluded that neither [application 1372] in its amended form, nor [application 0445] nor indeed a combination of the two could have constituted EIA Development. "