COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr Justice Lightman
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JUDGE
LORD JUSTICE JONATHAN PARKER
| STEVEN EVANS
|- and -
|(1) FIRST SECRETARY OF STATE AND OTHERS
(2) THE LONDON METROPOLITAN UNIVERSITY
(3) THE LONDON BOROUGH OF ISLINGTON
(instructed by Alan Edwards & Co) for the Appellant
Peter Village Esq, QC & James Strachan Esq
(instructed by Lawfords) for the Second Respondent
Hearing dates: 23rd October 2003
Crown Copyright ©
Lord Justice Simon Brown:
"The development proposed, namely demolition of some existing buildings and construction of additional student residential accommodation, falls within the description at paragraph 10b of Schedule 2 to the 1999 Regulations, and exceeds the threshold in column 2 of the table in that schedule, but in [the] opinion of the Secretary of State, having taken into account the criteria in Schedule 3 to the 1999 Regulations, would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location.
Accordingly, in exercise of the powers conferred on him by regulations 9(1) and 6(4) of the 1999 Regulations, the Secretary of State hereby directs that the development for which planning permission is sought by application reference number P011089 is not EIA development."
"Taking account of all these matters, especially the design, size, scale and external appearance of the proposed building, I conclude that although it would have a significant effect on the character and appearance of the surrounding area, this would not be an adverse impact. I further conclude the proposed development would not therefore conflict with the purposes of the relevant parts of Policies H12, H19, Ed 9, D1, D3, D4 and D5." (paragraph 39)
That conclusion was effectively repeated later in the letter as follows:
"I have concluded that, although the proposed building would be both large and visible and it would have a significant effect on the character and appearance of its immediate surroundings by reason of its design, size, scale and external appearance, I do not believe this would be an adverse impact." (paragraph 70)
"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."
"Prohibition on granting planning permission without consideration of environment information
(1) This regulation applies
(a) to every EIA application received by the authority with whom it is lodged on or after the commencement of these Regulations; and …
(2) The relevant 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 they shall state in their decision that they have done so."
"(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development.
(5) 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.
(7) The Secretary of State may make a screening direction irrespective of whether he has received a request to do so."
The term "screening direction" is defined in regulation 2 as "a direction made by the Secretary of State as to whether development is EIA development".
"Where an inspector is dealing with an appeal and a question arises as to whether the relevant application is an EIA application and it appears to the inspector that it may be such an application, the inspector shall refer that question to the Secretary of State and shall not determine the appeal, except by refusing planning permission, before he receives a screening direction."
"(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development."
The Secretary of State's Direction is decisive, unless and until he himself cancels or varies it, of whether the Development is or is not EIA development. The Inspector was in these circumstances inhibited neither by regulation 3(2) nor by regulation 9(2): not regulation 3(2) because that concerns only "an application to which this regulation [regulation 3] applies" and regulation 3 applies only to EIA applications (defined by regulation 2 as applications for EIA development) which the Secretary of State's Direction has determined "for the purpose of these Regulations" the Development is not; not regulation 9(2) because no question could arise on the appeal to the Inspector as to whether the application was an EIA application because, again, the Secretary of State's Direction had already determined it was not.
"That [the cancellation or variation of an earlier direction if he has grounds for doing so] is an option open to the Secretary of State at any time before the grant of planning permission and an option which he is duty bound to have in mind and of which it is open to an Inspector to remind him."
"… there is a compelling reason for a determination at this stage of the litigation so that the Development can be allowed to proceed at the earliest available date and the urgent need for accommodation intended to be provided by the Development can be satisfied as soon as possible."
Lord Justice Judge:
Lord Justice Jonathan Parker: