COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Sir Richard Tucker
London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
MR JUSTICE MORLAND
| THE QUEEN (on the application of Anne-Marie Goodman and Keith Hedges)|| Appellant|
| and |
|THE LONDON BOROUGH OF LEWISHAM||Respondent|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Maurici instructed by Ms Kath Nicholson for the Respondent)
Mr Keith Lindblom Q.C. and Mr Meyric Lewis (instructed by Messrs Park Nelson) for the Interested Party
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Buxton :
The requirement of environmental assessment
"development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out…this assessment must be conducted on the basis of the appropriate information supplied by the developer"
Annex II to the Directive sets out a broad list of types of project in respect of which Member States are required by Article 4(2)(b) of the Directive to determine, through "thresholds or criteria" set by them, whether a particular project should be subjected to a formal environmental assessment.
"any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development."
"(a) Industrial estate development projects
(b) Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas"
The threshold adopted by the United Kingdom for determining whether particular developments falling within those categories come within the reach of the Regulations is that such developments fall under schedule 2 if the area of the development exceeds 0.5 hectare.
"Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location"
Where an application is made for EIA development, permission cannot be granted for that development unless the planning authority take into account, and so state in their grant, the "environmental information" relevant to the development [Regulation 3(2)]. The environmental information so required is a statement in accordance with Schedule 4 to the Regulations that either is provided by the developer or is required of him by the planning authority. That latter requirement comes about in the following way. By Regulation 7, where the authority receives an application that "appears" to it to be an application for Schedule 2 development, and is not accompanied by an environmental statement from the developer, the authority must already have, or must within three weeks adopt, a "screening opinion" as to whether the development is an EIA development. If the authority concludes that the development is an EIA development, the inhibitions imposed by Regulation 3(2) on the grant of planning permission come into effect; if the authority does not so conclude, those inhibitions do not apply, and the application is treated like any other planning application.
"may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational."
The decision in this case
"The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI No: 1199) identify two separate lists of projects in respect to the requirement for an applicant to produce an Environmental Impact Assessment (EIA). Schedule 1 projects, for which an EIA is mandatory, include an oil refinery, storage of radioactive waste and chemical installations etc. This proposal does not fall within this category. Schedule 2 is for projects that are considered could give rise to significant effects on the environment by virtue of factors such as its nature, size or location. The following activities fall into this category, agriculture, extractive industry, processing of metals, glass making, chemical industry, food industry, textile and paper industries, rubber industry, infrastructure projects and other projects i.e. holiday village, knackers' yard etc. A storage and distribution use does not fall under this category either."
When the application was reported to the council, much the same terms were adopted by the officers:
"In relation to the request for an Environmental Impact Assessment (EIA), the 1988 Regulations identify proposals that fall within two schedules. The first schedule identifies uses where an EIA is mandatory. These include proposals such as an oil refinery and other heavily polluting uses. Schedule Two contains proposals that may give rise to a significant impact on the environment. A storage and distribution use, such as this proposal, falls in neither Schedule 1 nor 2."
"28. Were the defendants unreasonable to conclude that it was not an urban development project? The context from which this expression takes its meaning is under the heading "Infrastructure". This was an existing urban site and of course it exceeds more than 0.5 hectares in area.
29. Does its redevelopment constitute an urban development project falling within the broader description of an infrastructure project ? The defendants were entitled to regard it as a single site with a single planning use (B8). The scheme proposed was much smaller and simpler thaen the developments referred to in some of the cases cited to me. There was no suggestion in a duplicate application, of which the Secretary of State was seised, that there was any requirement for EIA."
Mr Justice Morland:
(10) "Infrastructure projects"…
(e) Canalisation and flood-relief works".
"The wording of the directive indicates that it has a wide scope and a broad purpose. That observation alone should suffice to interpret point 10(e) of Annex II to the directive as encompassing all works for retaining water and preventing floods – and therefore dyke works – even if not all the linguistic versions are so precise."
Lord Justice Brooke :