QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of Long
|- and -
|Monmouthshire County Council
|Optimisation Development Ltd
Mr Richard Ground (instructed by Eversheds LLP) for the Defendant
Mr James Maurici (instructed by Gordons LLP ) for the Interested Party
Hearing dates: 4, 5 & 8 October 2012
Crown Copyright ©
Mrs Justice Nicola Davies:
i) contrary to Regulation 3 of the Town and Country Planning (Environmental Impact Assessment (England and Wales)) Regulations 1999, SI 1993/293 ("the EIA Regulations");
ii) contrary to Regulation 61(1) of the Conservation of Habitats and Species Regulations 2010 ("the Habitat Regulations");
iii) contrary to the Development Plan Policy ("UDP") and without proper consideration of that conflict; and
iv) contrary to the statutory obligations which bind the Council with respect to the livestock market which is currently operational in Abergavenny.
"… the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority ..."
"The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to –
(a) the existing land use;
(c) the absorption capacity of the natural environment, paying particular attention to the following areas –
(iv) nature reserves and parks;…
(viii) landscapes of historical, cultural or archaeological significance." (paragraph 2)
"Characteristics of the potential impact" which include the extent, probability, duration and reversibility of the impact (paragraph 3).
i) A screening opinion does not involve a detailed assessment of factors relevant to the grant of planning permission and does not require all considerations to be mentioned. In R (Bateman) v South Cambridgeshire District Council  EWCA 157 Moore-Bick LJ (with whom Jackson LJ agreed) said:"11. … the decision taken on a screening opinion must be carefully and conscientiously considered and must be based on information which is both sufficient and accurate. The opinion need not be elaborate, but must demonstrate that the issues have been understood and considered …20. … I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term screening opinion.21. Having said that, it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request."In Zeb v Birmingham District Council  Env LR 30 Beatson J said:"It is important to remember what the purpose of a screening opinion is. It is to ascertain whether a development proposal requires an environmental assessment under the Directive. Detailed reports are not required. What is required is an initial assessment of an intended proposal. One sees this from the terms of the Regulations, in particular paragraph 5(2)(aa). That refers to sufficient information to identify any planning permission granted for development for which a subsequent application is made. In relation to the nature and purpose of the development, paragraph 5(2)(b) states that a "brief description" is required. Although an authority is empowered to call for further information, the default position, (see paragraph 5(4)), is that an authority is required to adopt a screening opinion within three weeks of a request. That default position gives some indication of the level of detail and the investigation required of the authority."
ii) As to the reasons they "can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for the decision": South Bucks District Council and another v Porter (No 2)  1 WLR 1953. A negative screening direction does not need to contain the reasons, these can be given subsequently, R (Mellor) v Secretary of State for Communities and Local Government (2010) Env LR 2 by the Court of Justice;
iii) In assessing possible environmental effects remediation measures can, to a certain extent, be taken into account. Jones v Mansfield District Council  EWCA Civ 1408 Dyson LJ (as he then was) at :" … It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie). The effect of the environment must be "significant". Significance in this context is not a hard-edged concept: as I have said, the assessment of what is significant involves the exercise of judgment."R (Loader) v Secretary of State for Communities and Local Government  EWCA Civ 869, Pill LJ at :"The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker."
iv) The judgment as to whether a development has significant effects upon the environment is a matter of planning judgment for the decision maker, only reviewable on Wednesbury grounds, R (Loader) v Secretary of State for Communities and Local Government  EWCA Civ 869 at [31, 36 and 43].
" … any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
"61(1) "A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and (b) is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications of that site in view of that site's conservation objectives."
"1. The Habitats Directive must be interpreted and applied by reference to the precautionary principle, which reflects the high level of protection pursued by Community policy on the environment – see Waddenzee paras 44 and 58;
2. A competent national authority may only authorise a plan or project after having determined that it will not adversely affect the integrity of the protected site in question – Article 6(3) and Waddenzee paras 56 and 57;
3. Unless the risk of significant adverse effects on the site in question can be excluded by the competent authority on the basis of objective information, the plan or project must be the subject of an appropriate assessment of its implications for the site;
4. If, following an appropriate assessment, doubt remains as to whether or not there will be significant adverse effects on the integrity of the site, the competent authority must refuse authorisation of the plan or project, unless Article 6(4) applies."
"[i]f the competent authority does not agree with the proponent's view as to the likely efficacy of the proposed mitigation measures, or is left in some doubt as to their efficacy, then it will require an appropriate assessment because it will not have been able to exclude the risk of a significant effect on the basis of objective information." (Sullivan J )
"All development should be of a good standard of design and respect the qualities of the character of its context. It will be required to: … (g) incorporate existing features that are of historical, visual or nature conservation value, and use the vernacular tradition where appropriate."
The local planning authority must make the decision in accordance with the Development Plan unless material considerations indicate otherwise (Planning and Compulsory Purchase Act 2004 s.38(6)).
Grounds of challenge
Grounds 1 and 2: The defendant failed to carry out a lawful EIA screening exercise
"I refer to the above planning application and the pre-application correspondence submitted by Peacock and Smith in November of this year. Having reviewed the proposals and consulted with the Assembly Government (Highways), the Environment Agency, The Countryside Council for Wales, Cadw, Glamorgan Gwent Archaeological Trust and the Council's own Highways, Environmental Health, and Biodiversity Officers, it is considered that the proposal is not likely to have significant environmental effects and will not, therefore, require a full Environmental Impact Assessment under the Regulations."
Having regard for the above appraisal and the consultation responses received, the Local Planning Authority does not consider that the proposal requires an Environmental Impact Assessment. The reasons for adopting this opinion in December 2010 were as follows:
There is potential for contamination of local watercourses from surface water discharges. However, the introduction, as a standard requirement, of an appropriate surface water drainage system including oil interceptors and the use of appropriate procedures in the construction phrase, would prevent uncontrolled run-off. There is also potential for pollution from the release of contaminants in the soils, subsoils and groundwater at the site associated with its use as a livestock market. However, such risks can be suitably managed and in these circumstances the risk to the local watercourses and the habitats they support is not sufficient to warrant an EIA. The Environment Agency in their consultation response identified the potential pollution risk from contaminants but did not consider that this justified an EIA. The Countryside Council for Wales and the Council's own Biodiversity Officer did not consider that the likely impacts justified an EIA.
2. Ecological impacts
The likely environmental impact on local watercourses and their habitats is not considered likely to be significant, as noted above. This comment is made in the context of the EIA Regulations and the information submitted about the proposed development; it is not intended to prejudge the outcome of the Appropriate Assessment process which would be carried out under different legislation.
The Countryside Council for Wales do not consider that the likely impact of the proposals justify an EIA. The Council's own Biodiversity Officer also expressed the view that a full EIA was not necessary.
6. Historic and cultural impacts
The archaeological resource at the site can be suitably investigated and recorded as can the older market buildings. The surrounding area contains a mix of uses and buildings, including buildings within the adjoining conservation area and some listed buildings. The likely impact of the proposed development on these buildings is not considered such as to warrant an EIA. Similar, the historic park on the opposite side of the trunk road would not be directly affected and it is considered that the impact on its setting would not be such as to warrant an EIA."
8. Socio-economic impacts
The need for a new supermarket within Abergavenny town centre is long established. The Council sponsored the three towns initiative in 1997 which … identified the Cattle Market site as the best location for a new supermarket to help regenerate Abergavenny town centre … Since May 1997 when the Monmouth Borough Local Plan was adopted, the Cattle Market has been included within the designated Central Shopping Area to facilitate its redevelopment for retail purposes, and the Monmouthshire Unitary Development Plan (adopted June 2006) has maintained this position. Supporting documents … have all evidenced the leakage of trade to other towns due to the lack of a towncentre supermarket … The benefits in reducing journeys by private car to other centres, and in supporting town centres such as Abergavenny with top up and spin off shopping are widely accepted, but in Abergavenny's case, the proximity of the proposed Morrison's site to the Communities First disadvantaged area of North Abergavenny is a major socio-economic potential benefit … While the socio-economic benefits of meeting the need for a new supermarket in the town centre are firmly established, the Council recognises that appropriate alternative provision needs to be made for the displaced use. An application for the relocated cattle market at High House Farm, Bryngwyn, near Raglan … approved by Planning Committee … The High House Farm proposal is relevant to the Abergavenny redevelopment proposal in that the Council's commitment to Bryngwyn evidences that the market can be relocated, and its importance to the rural economy will not be lost … The Bryngwyn site in particular is more central to Monmouthshire's main farming areas, and is not proposed to have any commercial development around it. Therefore in socio-economic terms, the related trade … should still be directed to Abergavenny, the nearest town to High House Farm."
The Screening Reasons concluded:
"In terms of the tests set out above in the introduction, it was concluded that: the development would not have significant effects on the environment by virtue of factors such as its size, nature of location and that (1) it would not have more than local significance, (2) the site is not particularly sensitive or vulnerable, and (3) there are no complex or potentially hazardous effects."
The claimant's case
a) the Urban Design Framework 2004 notes that the slaughterhouses are of sufficient value and should be retained;
b) it has been recommended that the adjacent conservation area should be extended to include the cattle market;
c) the site lies in the vicinity of a number of listed buildings;
d) a watercourse on the site flows into the River Usk, EU-designated SAC and SSSI;
e) the decision would have wide socio-economic effects on the town population and local farming community.
"The existing buildings associated with the slaughterhouse complex, whilst not listed, are considered to be of sufficient townscape value to warrant their retention in part, or in whole, and are fundamental to the realisation of the overall aims for the revitalisation of Abergavenny."
"Even without Conservation Area status this site is of importance, being bounded by the Conservation Area on three sides, and by listed buildings, while to the north is the Grade II registered Bailey Park."
"The Cattle Market adjoins but lies outside the Conservation Area. It is nonetheless of historic interest given the important role of the Cattle Market in the history of the town, a livestock market already having been established at the present site north of Lion Street in 1863. Reference has already been made to the desire for the scheme to reflect the historic layout and boundary treatments of the Cattle Market."
i) The Council's conservation officer objected to the demolition of the slaughterhouses;
ii) The Design Commission for Wales stated that the development will create a suburban enclave with a tenuous relationship to the Conservation Area;
iii) Bryn y Cwm Forum stated "[t]hat the retention of the abattoir buildings, which have architectural, historic and bat roost value have been insufficiently examined."
iv) Pontypool Park Estate Offices and KALM also objected to the loss of the market and slaughterhouses.
"The registered park of Bailey Park lies immediately to the north of the proposed development and I can confirm that the development could have an impact on its setting."
In a letter dated 19 January 2011, Cadw stated:
"south boundary of the park, including the main entrance on the south side, would be opposite the north boundary of the development. The treatment of this boundary and development adjacent to it is highly sensitive in visual terms as they would be highly visible from the entrance to the park and from its south end."
Cadw suggested measures in mitigation which was adopted. It is the claimant's case that this fact does not detract from the underlying sensitivity of the site.
"The surrounding area contains … some listed buildings. The likely impact of the proposed development on these buildings is not considered such as to warrant an EIA."
Further, under "the absorption capacity of the natural environment" the screening reasons reference only the River Usk SAC and SSSI and the local registered historic park (Bailey Park).
Ground 3: The Council failed to carry out an Appropriate Assessment as required by the Conservation of Habitats Regulations Directive
i) The proposed development gives rise to an identifiable risk of pollution to the River Usk SAC; the claimant relies upon an extract from an email in December 2010 from the CCW which stated:" … The nearest designated site is the River Usk Special Area of Conservation and Site of Special Scientific Interest. As surface water from this site is likely to enter the River Usk (presumably via the River Gavenny) there is potential for the designated site to be indirectly affected. Without appropriate safeguards and mitigation in place there could be a reduction in water quality. This can be addressed by ensuring that agreed safeguards are in place both during construction and operation of the site as part of any planning permission and should therefore not be a significant issue."
ii) The Council did not carry out an appropriate assessment rather it undertook a screening assessment;
iii) The Council's conclusion that there was not likely to be significant effects relied on proposed mitigation, and while that is acceptable in principle there was insufficient certainty about such mitigation such that the Council failed in its obligations under the Habitats Regulations. It failed to adopt the correct approach as set out in Akester above by relying upon non-specific mitigation.
Ground 4: The Decision was made without regard to Unitary Development Plan (UDP) DES(1)(g)
Ground 5: The decision cannot be lawfully implemented
Response of the defendant and the interested party
i) Abergavenny Town Council, who recommended approval if the traffic issues could be resolved. In their further response it was stated:".. they believe that a majority of people in the town wish to see the development take place."
ii) Cadw, the Welsh Government's historic environment service, had no further concerns following changes to the scheme which resolved their concern (lighting) relating to Bailey Park.
iii) The CCW, the Government's statutory advisor on sustaining natural beauty and wildlife, did not object to the application subject to planning conditions which were imposed.
Grounds 1 and 2
Claimant's points (a) to (e):
"Only part of the site is covered by buildings and their demolition was not considered likely to give rise to a significant environmental impact."
"The retention of the old stone slaughterhouse buildings alongside the northern boundary wall was thoroughly investigated by the applicant given the historic importance of the Cattle Market but their retention was found not to be feasible given the location of the access, the operator's need for a large coherent floor area, and the other constraints identified above."
"It is unfortunate that the scheme cannot also incorporate the historic (but unlisted) slaughterhouse buildings along Park Road but as their retention would effectively prevent the implementation of a viable scheme, planning officers are of the view that the balance of advantage lies with their removal. The stone is to be re-used on site and the public art to be installed at the site can reflect the former use of the site as a livestock market with slaughterhouse. The foodstore elevation facing Park Road includes an interpretation of the slaughterhouse buildings."
Thus, the loss of the unlisted slaughterhouse buildings was considered in the officer report, inclusion of the detail of this consideration was unnecessary in a screening opinion.
" … the site is beyond the conservation area boundary … The Conservation Area Appraisal, commissioned by the Council, has not been finalised but the consultant's view is that the conservation area should be extended to include the cattle market."
i) The claimant recognises that it is lawful in EIA screening to have regard to proposed mitigation;
ii) The screening opinion gave careful consideration to this issue and had regard to the views of the relevant statutory consultee, the CCW which signed off on the view reached on this matter by the Council. In addition to the "Pollution Opinion" identified in paragraph 28 above, the screening reasons included the following:
"1(e) pollution and nuisances
Comment: the main risk of pollution is the potential for uncontrolled surface water discharges to adjoining watercourses and the risk of releasing contaminants already in situ in association with the operation of the livestock market. In practice these risks were considered to be manageable and low given the established practices of managing in-situ pollution where this is shown to be present, the introduction of a managed surface water discharge system including the oil interceptors, and the Council's ability to require appropriate environmental management procedures during the construction phase …
2(c): the absorption capacity of the natural environment
Comment: … There are no designated sites that would be directly affected by the proposal although there is potential for a designated site (River Usk Special Area of Conservation and Site of Special Scientific Interest) to be indirectly affected in that surface water from the site would drain to the River Gavenny and thence to the River Usk. Comment has already been made on the consideration of the likely impact on local watercourses in 1(e) above. The Countryside Council for Wales was satisfied that appropriate safeguards could be put in place during construction and operation and that an EIA was not required …
"10. DRA01 - No development shall commence until a scheme of … surface water drainage has been submitted to, and approved by, the Local Planning Authority and the approved scheme shall be completed before the first of the buildings is occupied.
Reason - To ensure satisfactory facilities are available for disposal of … surface water
32. NAT – No development shall commence until a Construction Environmental Management Plan (CEMP) has been submitted to and approved in writing by the Local Planning Authority. The CEMP shall include details of:
(i) a drainage strategy setting out controls of contamination during construction, including controls to surface water run-off, water pumping, storage of fuels and hazardous materials, spill response plans and pollution control measures;
(ii) pollution prevention and contingency measures. Construction works shall be implemented in accordance with the approved CEMP.
Reason - In the interest of safeguarding the River Usk SAC and SSSI.
33. NAT - All Surface water runoff from external hard paved areas (car parks, access roads and service yards) shall be passed through Class 1 Bypass Separators prior to discharge to the culverted watercourse to prevent oils and silt entering the watercourses and shall be regularly maintained by the end user.
Reason - In the interest of safeguarding the River Usk SAC and SSSI."
These conditions, described in submissions as standard conditions, hence the abbreviations (DRA01, NAT) were included in the issued permission: conditions 10, 32, 33.
"10 Is the potential scale or magnitude of any effect likely to be significant? Alone? No, the potential scale or magnitude of any effect will not be significant.
Contractor to ensure the culverted watercourses is not polluted in accordance with the Environment Agency Guidelines. To be written into the "preliminaries" with the contractor. (Confirmed via email from Peter Tattersfield of Penny Anderson Associates 21/3/2011 – see attached).
A planning condition will be used to secure a Construction Environmental Management Plan (CEMP) which will require details relating to construction site drainage and implementation of pollution protection measures and emergency measures should the spillages occur.
All surface water runoff from external hard paved areas (car parks, access roads and service yards) will be passed through a Class I Bypass Separators prior to discharged to the culverted watercourse to prevent oils and silt entering the watercourses and will be regularly maintained by the end user. (Confirmed via email from Peter Tattersfield of Penny Anderson Associates 21/03/2011 – see attached).
A plan has been submitted as part of the planning application Proposed Drainage and Levels QL1017-D2[P1].
The adoption of these avoidance measures will protect the River Usk SAC.
11. Conclusion Is the proposal likely to have a significant effect "alone or in combination" on a European site?
There will not be a significant effect on the Interest features of the River Usk SAC. Therefore an Appropriate Assessment will not be needed".
The screening assessment records the view reached that with the necessary conditions the proposed development was not likely to have significant effects on the environment if the necessary conditions were imposed.
"CCW concur with the conclusion of this assessment provided that the safeguards relating to drainage from the proposed site (both during construction and implementation phase) as outlined in section 10 above are implemented as part of this scheme. These comments may be taken as CCW's formal response under regulation 61(3) of the [Habitats Regulations 2010]".
"In my judgment a breach of article 6(3) of the Habitats Directive is not established merely because, some time after the "plan or project" has been authorised, a third party alleges that there was a risk that it would have a significant effect on the site which should have been considered, and since that risk was not considered at all it cannot have been "excluded on the basis of objective information that the plan or project will have significant effects on the site concerned". Whether a breach of article 6(3) is alleged in infraction proceedings before the ECJ by the European Commission (see Commission of the European Communities v Italian Republic (Case C-179/06)  ECR I-8131 , para 39), or in domestic proceedings before the courts in member states, a claimant who alleges that there was a risk which should have been considered by the authorising authority so that it could decide whether that risk could be "excluded on the basis of objective information", must produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered"
i) Policy DES1 was specifically cited and referred to in the officer report;
ii) Policy DES1 is a policy with which the Planning Committee are very familiar, it being an overarching policy relevant to all applications. It is one of only two Development Plan policies set out in the terms of the Constitution of the Committee, it is also referred to in the planning permission itself;
iii) This was a case where the Development Plan could be said to pull in different directions. The officer report concluded that retail and local services policy supported the proposed development. Officers regarded what was proposed as compliant with a number of design policies in DES1(5.2.3, 5.2.4). The officer report recognised that the loss of the historic slaughterhouses was "unfortunate" but concluded that their retention would prevent implementation of a viable scheme that would bring with it the significant planning policy benefits identified in the report. The view was reached that "the balance of advantage lies with their removal". Thus, the assessment of whether overall there could be said to be compliance with the Development Plan and whether permission should be granted was wholly a matter of judgment for the decision maker.
Grounds 1 and 2
Claimant's points (a) to (e)
"5.4.3 There are listed buildings in the vicinity, in Lion Street. This was a significant consideration in appraising the suitability of the submitted layout and the objections suggesting that the building be moved towards or alongside Lion Street. It is considered that the proposed open aspect from Lion Street not only reflects the historic layout of the Cattle Market Site but also protects the listed and unlisted buildings in that street and their contribution to the historic townscape. The Council's Conservation Manager who regrets the loss of the slaughterhouse buildings nonetheless shares the views of planning officers that siting the foodstore on Lion Street would harm the Lion Street scene … It is the view of planning officers that having regard for the constraints associated with the site, the application proposals respect the listed buildings in Lion Street and the Conservation Area and its setting. "