COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
( Mr Justice Richards)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE CARNWATH
| THE QUEEN on the APPLICATION OF JONES
|- and -
|MANSFIELD DISTRICT COUNCIL and Another
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 John Steel QC and Ms Sarah Jane Davies of Counsel (instructed by Messrs Brown Jacobson) for the Respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Dyson :
"The local planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so."
"Schedule 2 application means … an application for planning permission … for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
"Where the Secretary of State gives a direction which includes a statement that in his opinion proposed development would be likely, or would not be likely, to have significant effects on the environment by virtue of factors such as its nature, size or location, or includes such a statement in a notification under regulation 10(1), that statement shall determine whether an application for planning permission for that development is, or is not, a Schedule 2 application by reason of the effects the development would be likely to have; and references in these Regulations to a Schedule 2 application shall be interpreted accordingly."
"1. An environmental statement comprises a document or series of documents providing, for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out, the information specified in paragraph 2 (referred to in this Schedule as "the specified information").
2. The specified information is –
(a) a description of the development proposed, comprising information about the site and the design and size or scale of the development;
(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;
(c) a description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference to its possible impact on: human beings; flora; fauna; soil; water; air; climate; the landscape; the interaction between any of the foregoing; material assets; the cultural heritage;
(d) where significant adverse affects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects;
(e) a summary in non-technical language of the information specified above."
"Whereas the 1973(4) and 1977(5) action programmes of the European Communities on the environment…..stress that the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects;
Whereas they affirm the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes; whereas to that end, they provide for the implementation of procedures to evaluate such effects;
Whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent procedures governing public and private projects likely to have a major effect on the environment;
Whereas 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…"
"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 an assessment with regard to their effects. These projects are defined in Article 4."
"2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Article 5 to 10, where Member States consider that their characteristics so require. To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10."
The role of the court
" The fact that in this case the Member States have a discretion under Articles 2(1) and 4(2) of the directive does not preclude judicial review of the question whether the national authorities exceeded their discretion (see, in particular, VERBOND VAN NEDERLANDSE ONDERNEMINGEN).
 Consequently where, pursuant to national law, a court must or may raise of its own motion pleas in law based on a binding national rule which were not put forward by the parties, it must, for matters within its jurisdiction, examine of its own motion whether the legislative or administrative authorities of the Member State remained within the limits of their discretion under Article 2(1) and 4(2) of the directive…"
It seems to me that this passage (particularly the reference to administrative authorities having a "discretion") supports the view that I have just expressed. I take the word "discretion" to mean an exercise of judgment, rather than discretion in the strict sense.
What is the correct approach to the question whether the development would be likely to have a significant effect on the environment?
"51. In my view it is important not to over-complicate the analysis of this issue, as Mr Wolfe seemed to me on occasion to do by, for example, his references to a "bounding principle" and to "bounded uncertainty" and "unbounded uncertainty". In any event I reject the contention that an authority is subject to a "bounding principle" whereby it must require an EIA unless confident or positively satisfied that the proposed development will not have significant effects on the environment, and that any uncertainty must be resolved in favour of requiring an EIA. I also reject the contention that there is a low gateway or threshold for the application of the EIA regime. Of course it is important, in view of the objectives of the Directive, that a lawful decision is made as to whether an EIA is required; but I do not think that any gloss is required on the provisions of the 1988 Regulations.
52. The straightforward position is that under the regulations an EIA is required if a non-exempt development of a Schedule 2 description "would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location". It is only significant effects that bring a development within the scope of the EIA regime; minor environmental effects do not do so, though all such effects may fall to be taken into account in the normal way as material considerations (cf. the observations of Sullivan J in Milne e.g. at para 113, in relation to the details to be included in an environmental statement where an EIA is required). It is for the authority to judge whether a development would be likely to have significant effects. The authority must make an informed judgment, on the basis of the information available to it and having regard to any gaps in that information and to any uncertainties that may exist, as to the likelihood of significant environmental effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends on the circumstances of the individual case."
"39….Thus as far as modifications to both Annex I and Annex II projects are concerned specific consideration must be given to whether the modifications may have a significant effect on the environment, so that where necessary an environmental impact assessment must be undertaken in pursuance of Article 5-10 of the directive.
40. The purpose of the directive, according to which projects may have significant effects on the environment must be subject to a prior environmental impact assessment militates decisively in favour of that interpretation….." (emphasis added).
" The Court also held in paragraph  of its judgment in KRAAIJEVELD, cited above, that a Member State which established criteria or thresholds at a level such that, in practice, an entire class of projects would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment."
" Consequently, the Directive confers a measure of discretion on the Member States and does not therefore prevent them from using other methods to specify the projects requiring an environmental impact assessment under the Directive. So the Directive in no way excludes the method consisting in the designation, on the basis of an individual examination of each project concerned or pursuant to national legislation, of a particular project falling within Annex II to the Directive as not being subject to the procedure for assessing its environmental effects.
 However, the fact that the Member State has the discretion referred to in the previous paragraph is not in itself sufficient to exclude a given project from the assessment procedure under the Directive. If that were not the case, the discretion accorded to the Member States by Article 4(2) of the Directive could be used by them to take a particular project outside the assessment obligation when, by virtue of its nature, size or location, it could have significant environmental effects.
 Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects.
 It should be added, with regard to the exclusion of the project at issue in the main proceedings from the assessment procedure under Law 27/92, that, even if that project concerns the only airport in the province which can be restructured and it has actually been specified by the legislature, the latter cannot in any event exempt the project from the assessment obligation unless, on the date when Law 27/92 was adopted, it was able to assess precisely the overall environmental impact which all the works entailed by the project were likely to have.
 As for the exclusion of the project on the basis of an individual examination carried out by the national authorities, the file shows that the contested measures were preceded by an environmental impact study carried out by a team of experts, that information was communicated to the municipalities concerned and that the public was informed by press notices. In addition, the environmental agency and the Amsterdirektorenkonferenz were consulted.
 It is for the national court to review whether, on the basis of the individual examination carried out by the competent authorities which resulted in the exclusion of the specific project at issue in the main proceedings from the assessment procedure established by the Directive, those authorities correctly assessed, in accordance with the Directive, the significance of the effects of that project on the environment.
 In view of the foregoing considerations, the answer to the first and second questions must be that Articles 4(2) and 2(1) of the Directive are to be interpreted as not conferring on a Member State the power either to exclude, from the outset and in their entirety, from the environmental impact assessment procedure established by the Directive certain classes of projects falling within Annex II to the Directive, including modifications to those projects, or to exempt from such a procedure a specific project, such as the project of restructuring an airport with a runway shorter than 2,100 metres, either under national legislation or on the basis of an individual examination of that project, unless those classes of projects in their entirety or the specific project could be regarded, on the basis of a comprehensive assessment, as not being likely to have significant effects on the environment. It is for the national court to review whether, on the basis of the individual examination carried out by the national authorities which resulted in the exclusion of the specific project at issue from the assessment procedure established by the Directive, those authorities correctly assessed, in accordance with the Directive, the significance of the effects of that project on the environment."
The judge's conclusions
"..was right about the underlying point that, despite the one uncertainty referred to, English Nature was effectively accepting that the development was not likely to have a significant impact on golden plovers. It was no part of English Nature's representations that further investigations might reveal the likelihood of a significant impact" (para 55).
"Although it was no doubt appropriate for the council to accept that unilateral undertaking and to impose conditions concerning further survey work with a view to gaining a better understanding and possibly minimising any adverse effect, such further work was plainly not considered necessary for the purposes of an informed decision on an EIA; and in the absence of the results of that work the committee could nonetheless reasonably proceed to a decision on an EIA and could reasonably decide that the development was unlikely to have significant effects in relation to Golden Plovers".
The appellant's case on the facts
My overall conclusion
Lord Justice Carnwath :
"The speeches (in Berkeley) need to be read in context. Lord Bingham emphasised the very narrow basis on which the case was argued in the House. The developer was not represented in the House and there was no reference to any evidence of actual prejudice to his or any other interest. Care is needed in applying the principles there decided to other circumstances such as cases where as here there is clear evidence of a pressing public need for the scheme which is under attack."
The principles for the exercise of the court's discretion are well-established (see the discussion in Wade, Administrative Law, 8th Ed p 688ff, a passage cited with approval by Lord Steyn in R(Burkett) v Hammersmith and Fulham LBC  1 WLR 1593; examples are collected in Fordham Judicial Review Handbook,3rd Ed. Para.24.3).
Lord Justice Laws:
"1. The concept behind the Abbot Road scheme is for a low density development of employment buildings with significant areas of strategic planting. Indeed the Local Plan Inspector recommended about 40% of the site should be landscaped. Accordingly the developed area of the site is likely to be significantly below the 20 hectare threshold referred to in the Circular.
2. The Local Plan Inspector drew comparison with another proposal and referred to the 'far less significant intrusion into open countryside' of the proposal as it would be bounded by the Western Bypass.
3. Finally in his report the Local Plan Inspector found that Abbot Road could accommodate the traffic generated without causing significant environmental harm.
4. I am of the opinion that the project is a local project and not of wider significance.
5. I am of the opinion that the location is not a particularly sensitive or vulnerable location.
6. I am of the opinion that the project is not unusually complex.
These points are relevant for the Council to bear in mind in its determination of whether EA is required against the criteria of the 1988 Regulations."
"Nottinghamshire County Council Rural Environment Group
It is acknowledged that the site is intensively farmed arable land with little conservation value, but there are other areas of concerns raised and these are summarised as follows:
(a) although there are no designated statutory or non-statutory wildlife areas on the site, there may be some species or habitats that could be of conservation concern;
(b) the proposal may lead to the loss of hedgerows which are valuable habitats and wildlife corridors;
(c) the ecological value of the site has not been adequately assessed, not being comprehensive due to when the surveys were carried out;
(g) no details of what would happen to the trees identified on the site, which can provide important wildlife habitats;
(h) insufficient information to determine the application;
(i) the site is considered important as a roosting site for Golden Plovers and it is felt that not enough information has been provided on alternative sites available in the area, if this site is developed ….
Object to the proposal the reasons being summarised as follows:
(a) the loss of the site for use by Golden Plovers should be a material consideration;
(d) further studies should be carried out over a wider area to establish the likely impact of the development on the Plover population;
(e) the argument that birds will move to other areas is not sustainable;
(f) landscaping of the site would not be suitable for the Golden Plovers
Nottinghamshire Wildlife Trust
Several comments have been made by this organization at different periods during the processing of this application raising various concerns and objections and these can be summarised as follows:
(g) It is believed that there are bats in the vicinity and as they are protected under the Wildlife and Countryside Act, a comprehensive bat survey should be undertaken of the area including trees, farm buildings and outhouses to ascertain their status and distribution, to assess the potential effects from the development and put forward measures for their protection;
(h) several birds of high conservation concern have been seen at the site, therefore a full bird breeding survey should be carried out at the appropriate time of year to evaluate the status and distribution of protected and common birds on the site, potential impact, and measures for their protection and enhancement. The surveys and studies undertaken by the applicants fail to offer adequate assessments or appropriate mitigation measures, specifically in respect of the Golden Plovers for which this is a regionally important winter migration site ….
North Notts Bat Group
Although there are no records of the farm itself, there are records of bats within a few miles of the site. The ecological survey identified that the site and the farm buildings may be important for bats. A full survey of the building should be carried out before any works are commenced and if it is established that there are bats using the buildings for a roost, the appropriate licence from the Department of the Environment, Transport and Regions must be applied for."
"The Golden Plovers
One issue to emerge as a consequence of public consultation has been the significance of the development upon the habitat of Golden Plovers. Evidence concerning this was not before me at the time that I made my determination in 1998 that Environmental Assessment was not required.
Nevertheless a request was made to the applicant to undertake an ecological study to assess the potential impact of the development on the site and the surrounding area was made and the applicant has provided a report of the ecological study and additional information specifically relating to Golden Plovers.
Once the relevant information was received English Nature were consulted and they have the following observations.
'Golden Plover in the context of this development proposal is protected only in so far as intentional killing and injuring under Part I of the Wildlife and Countryside Act 1981 (as amended). However it is unlikely that operations associated with the development will cause offences under this legislation. Consequently, paragraph 47 of PPG9 may therefore not apply to Golden Plover in this case.
Golden Plover is, however, listed on Annex 1 of the European Birds Directive 79/409/EC and the number of birds wintering around Penniment Farm, Mansfield are at least of local importance in a Nottinghamshire context. Even so, it is far from clear whether the proposed development would have a measurable impact upon the current Golden Plover numbers within the wider area available to this species in Nottinghamshire. The amount of Golden Plover wintering habitat that would be lost is also relatively small in terms of the amount available to the species within Nottinghamshire. In addition, it is likely that farming practices have far greater influence on wintering Golden Plovers than the loss of land to development. It is on this basis that English Nature considers that there are no substantiated grounds of a statutory nature on which we could object to this application.'
I consider that the highlighted comment of English Nature about the lack of clarity of any measurable impact enables me to advise that the development will not have a significant environmental impact upon the Golden Plover habitat" (original emphasis).
"There are certain conditions on the site that are important, in particular those which encourage its use by Golden Plovers and to a lesser extent by Lapwings. Information received from the applicant and various consultees, suggests that the site is an important roosting/feeding site for Golden Plover. It is important to the Plovers due to the character of the site, with its large open arable fields and few hedgerows or other features that could conceal potential predators. As with many rural habitat situations, this environment has been created by farming practices, over which the Local Planning Authority has little control and which could easily change without notice, negating any value the site currently has for the Golden Plovers. It is clear from the information received, and comments made, the full impact on the Golden Plovers by the development of the site cannot be accurately assessed, as it is considered as being only a small part of a much wider area used by them. It is also difficult to address the loss of this site to development ….
It is clear in this instance that there would be unavoidable loss of the fields used by the Golden Plovers and that it would not be possible to recreate the particular character of the site to compensate the loss. The applicant has offered in the form of a unilateral undertaking, to carry out further studies in and around the area of the proposed development site, in order to gain a better understanding of the Golden Plovers movements in the locality, which could then be used generally to assess the impact of this and other developments in the area. They have also suggested other initiatives to protect and enhance the Golden Plover habitats, but these would involve third parties playing an active role. The nature conservation bodies are of the opinion that this is not an appropriate approach ….
Other ecological issues raised include the loss of hedgerows, bat roosts and habitats/feeding sites for various other species of birds and animals of conservation concern ….
Although there is no clear evidence that bats use either the farm buildings or trees in the area, there is every possibility that they could. Even if this is the case there is no reason why the site cannot be developed subject to activities affecting possible bat habitats and roosts being carried out at the appropriate time of year. Further to this, various measures can be carried out to encourage their establishment in the locality.
A criticism of the ecological survey submitted, is that it does not give a full annual assessment of the site and there may be species of flora and fauna that may be present which have not been recorded. Since the application was first considered, the applicants have commenced some additional survey works, so that all species and habitats including the river catchment area, can be considered, in the preparation of appropriate mitigation measures that will be required. A commitment to the additional ecological survey work is also given in the unilateral undertaking.
Although it is acknowledged that the Golden Plovers may be affected by this proposal, I am of the opinion that there will be some benefits for wider nature conservation and that there are other overriding material factors, which support the proposal to develop this site."
"(12) No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a scheme of landscaping…
(13) A landscape management plan … shall be submitted to and approved in writing by the Local Planning Authority prior to the occupation of any development on site or any phase of the development, whichever is the sooner ….
(14) Site clearance shall not take place during the bird breeding season March-July unless otherwise agreed in writing by the Local Planning Authority.
(15) Demolition of buildings on site shall only be undertaken in the months of September-October unless otherwise agreed in writing by the Local Planning Authority.
(16) Any trees to be removed from the site shall be felled in sections and lowered to the ground by ropes. These works shall only take place in the months of September and October in accordance with details which shall be submitted to and approved in writing by the Local Planning Authority."
"(9) The applicant is advised that the landscaping of the site must be undertaken in a manner which will encourage nature conservation and bio-diversity in the locality ….
(11) The applicant is advised that any survey must include all species of birds and bats that may be using the existing buildings, trees and hedges on the site. The mitigation measures must also include a programme of management for existing trees and hedges on the site ….
(14) … English Nature must be notified if the proposal is likely to destroy or disturb bat roosts."
"Prior to the Commencement of Development of the Land (including tree felling, demolition works or rubbish clearance), a full ecological survey shall be undertaken to establish all ecological interests on the site and must include all fauna and flora elements. Any such survey shall cover a period of one calendar year and include details of all the trees and hedges, including type, position and condition, a bat survey to establish the level of occupancy and use, following which, the results of that survey and any details of appropriate mitigation measures and aftercare measures (including details of implementation phasing of new plant and animal habitat creation) to protect and/or replace/relocate/enhance habitats, ecosystems or any other elements important for nature conservation shall be submitted to and approved in writing by the Council. Thereafter the scheme shall be implemented as approved."