COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT AND DIVISIONAL COURT)
Mr Justice Silber
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
MRS JUSTICE BLACK
| Maureen Smith ||Claimant/|
|- and -|
|Secretary of State for the Environment, Transport and Regions & ors||Defendant/|
Timothy Corner QC (instructed by Treasury Solicitor) for the first Defendant
John Barrett (instructed by Walker Morris) for the second Defendant
Hearing dates : 3rd and 4th February 2003
Crown Copyright ©
Lord Justice Waller:
(1) to vary conditions 2 and 24 of the 1992 permission,
(2) to landfill the quarry with controlled waste (that is, domestic, commercial and industrial waste),
(3) to introduce access improvements to the site.
"The proposal will be contrary to GP2 (I), (II), (IV) and policy W1 (I) of the approved Unitary Development Plan, particularly by reason of the smell which would be generated, the visual impact on the surrounding environment and to the detriment of pedestrian safety along the A629 through Denholme Village".
"Given this site context, I have come to the view that the main issues in this appeal are whether:
filling the quarry with waste would harm the visual amenities of the Green Belt, having regard to the proximity of a Special Landscape Area to the west and to the setting of Park Farm, a Grade II listed building;
a continuation of quarry working and a phased restoration by landfill could be carried out without polluting the local environment and disrupting the lives of local residents to an unacceptable degree;
and, in the light of my conclusions on the above, whether:
the proposed development would be inappropriate in the Green Belt (and if so, whether there are any very special circumstances that would justify it);
there is a need for a new landfill site proximate to Bradford conurbation, involving additional stone extraction, to which appropriate weight should be given in balancing any benefits against harm (having regard to the Best Practical Environmental Option the BPEO)."
Impact on the environment was therefore identified by the Inspector as the key issue.
"14. The phasing and restoration proposals have however been carefully designed, both to screen most of the workings during the extraction and landfill phases and to create a land form appropriate to the grazed and wooded moorland fringe slopes of the areas. Although local climatic conditions are not favourable to fast tree growth, a sensible choice of species and planting techniques can achieve a degree of impact that would help absorb the development into the landscape. In the two key locations of visual impact, I believe therefore that the character of the local landscape would be sustained and that the end result would be attractive. Those locations are firstly, along Whalley Lane and in views towards the southern site boundary from Denholme Edge, and secondly from the end of Hewenden Reservoir and its eastern slopes.
15. In the first case, although for relatively short periods the top of the landfill and/or noise attenuation mounds would be seen during the operational and surcharge phases, set against the broader sweep of the landscape beyond or in passing down Whalley Lane its impact would be slight. In the second example, although there would for short periods be views into the landfall area that would be less pleasant than looking at a stone extraction face, that would be a receding and partially screened experience in the middle distance, again set within a strong land form that can absorb it. After restoration, the landform and its associated woodland planting would, I conclude, be seen as an integral part of the local landscape.
16. At Buck Park Farm (a listed building), the existing screening bund would have, behind it, an admittedly high but temporary additional earthwork and (possibly) a stone wall both acting as noise attenuation barriers. I conclude below in respect of noise that I see no need for a permanent wall (which could be oppressive immediately above the farmhouse on the skyline). The profile of the temporary bund would slope steeply away from viewpoints on Whalley Lane and be beyond the present high bund at the back of the farmhouse. Subject to noise attenuation being achieved only by temporary earthworks, I conclude that the setting of the farmhouse would not be changed by the development.
17. The site design and management regime that can be exercised, through landscaping and aftercare planning conditions, through the legal agreements submitted and through the Integrated Pollution Control and Prevention and Control (IPPC) permit under the jurisdiction of the Environment Agency is extensive. I therefore have no reason to doubt that the appellant company is capable of ensuring that the visual impact of the development on the Green Belt, during and after development, would be acceptable."
I draw particular attention to the reliance by the Inspector in coming to his decision, so far as trees were concerned, on there being in the future "a sensible choice of species and planting techniques" (paragraph 14), and on the degree of control that could be exercised "through landscaping and aftercare planning condition . . . . (paragraph 17).
"32. Finally in this issue, I turn to other potential pollutants: dust, odour and vermin. I agree with the appellant that the latter two are more properly matters for site management and would be controlled on a day-to-day basis through the operation of an IPPC permit using the best available technique. Although I do not underestimate the concerns of residents after their well-documented local experience at Manywells, such techniques are proven to be effective when properly and speedily applied on a well-run site. I do however accept that the proximity of Buck Park Farm to potential dust generating activities is a material land use consideration that deserves attention at this stage. I consider nonetheless that any potential harm can be overcome by requiring a dust suppression scheme to be agreed and implemented as a planning condition."
"48. In my reasoning above, I have referred directly or indirectly to a number of planning conditions that will need to be imposed and the reasons for them. Overall, I shall impose conditions that seek to:
define the development and its methods and hours of operation;
describe the details and procedures that are needed to ensure that the various phases of development are implemented in a way that mitigates their environmental impact and ensures a high and safe standard of working,
set out the arrangements (and where appropriate standards) for the control of the access, noise, dust, odour and water pollution consistent with the controls that are the province of the Environment Agency under LPPC;
control the restoration and aftercare of the site and its associated landscaping;
and in doing so incorporate and update those conditions which are still relevant from the 1990 permission. They are based on those discussed and generally (but not totally) agreed at the inquiry between the appellant and the Local Planning Authority, having considered also the suggestions also made by the third parties.
49. The appellant has submitted a unilateral undertaking under s.106 of the Act. This provides for additional controls over the adequacy of site engineering works, for the provision of highway improvements, for a contribution to Bradford City Council of £40,000 for traffic safety measures in Denholme, and for the landscape management of the site and its immediate surroundings. A local liaison committee would also be established. I regard these obligations on the appellant and the landowner as providing significant environmental and community benefits which would mitigate the impact of the development, as already discussed above.
50. I also note that other agreements and a deed between the appellant and the landowner define the respective responsibilities of the two parties in working the site (the appellant being responsible for the landfill, the owner for stone extraction). Importantly, they provide for the appellant to take control in the event of the landowner not complying with best environmental practice in working the quarry. Given the history of the site, this adds confidence to my conclusions as to the acceptability of the overall development."
"51. I have concluded above that the development as whole would be appropriate in the Green Belt. With the imposition of suitable planning conditions and giving weight to the provisions of the s. 106 obligation and other legal safeguards, I am satisfied that the site can be worked and filled to high environmental standards and can be restored to fit in with the local landscape. I have also concluded that, whilst the outcome of the deliberations on need and proximity is not entirely clear cut, there are strategic advantages to locating a landfill site in this part of Bradford. For these and the more detailed reasons given above and having regard to all other matters raised, I therefore conclude overall that the appeal should be allowed.
52. In exercise of the powers transferred to me, I allow the appeal and grant planning permission for (1) the continuation of mineral extraction without complying with conditions numbered 2 and 24 of planning permission 90/9/02224 granted by Bradford City Council on 26 March 1992, (2) the improvement of the access arrangements and (3) the disposal of controlled waste, all at Buck Park Quarry, Whalley Lane, Denholme; in accordance with the terms of the application No: 98/01809/FUL dated 23 July 1999, as amended by the letter dated 3 December 1998, and the plans listed below, subject to the following conditions: .."
"3. Unless otherwise agreed in writing by the Local Planning Authority mineral extraction, landfilling, restoration and aftercare of the site shall be carried out in accordance with the following plans:
Amended plan referenced 13/5059/4 and titled "Application Boundary and Land Ownership" as received by the Local Planning Authority on December 1998.
Plan titled "Site configuration and Phasing" as referenced 16/5059/4 as revised in February 2000
Plan titled "Junction improvements (Ghost Island Junction) and Footpath Alterations" referenced ref NL 02785 as revised in December 2000
Plan titled "General Layout of Site facilities" referenced and dated 30/5059/4 January 1998
Plan titled "Restoration Plan Pre-settlement (Worst Case Scenario) Contours Shown" referenced NL02785/49 and dated Feb 2000
Plan titled "Restoration and Pre-Settlement Contours" referenced 25/5059/4 and dated Nov 1997
Plan titled "Site topography & Proposed Access Road" referenced 34/5059/4 and dated September 1997
Save where measures are required by the conditions set out elsewhere on this permission which shall take precedence over the above approved plans.
5. No development shall take place until a detailed scheme for the landscaping of the site has been submitted to and approved in writing by the Local Planning Authority. Such scheme shall included details of:
a) the positions, species and sizes of all existing trees, shrubs and hedgerows on the site which are to be retained and the proposals for their protection throughout all operations on site,
b) the position, species, density and initial sizes of all new trees and shrubs,
c) the method of planting to be used including any protection measures,
d) the programme for implementation and carrying out of the scheme.
The scheme as approved shall be carried out in full accordance with the agreed programme of implementation following the date of such approval in writing.
6. A landscape management plan including management responsibilities and maintenance schedules for all landscaped areas shall be submitted to the Local Planning Authority for approval in writing concurrent with the landscaping scheme required by condition 5 above. The landscape management plan shall be carried out as approved by the Local Planning Authority for the duration of the landfilling site restoration works.
9. No development shall take place until a scheme to suppress dust generated on site, has been submitted to and approved in writing by the Local Planning Authority. Once approved such scheme shall be implemented in full until site restoration is completed in accordance with condition 19 below."
(i) Whether Condition 5 of the Inspector's Decision Letter was defective as it failed to require the proposed development to comply with the proposed tree planting and grassland seeding schemes and mitigation measures set out in the Landscape Proposals contained in the Second ES ("the Landscaping Issue");
(ii) Whether Condition 9 of the Inspector's decision was defective as it, failed to require the proposed development to comply with the proposed dust mitigation measures set out in the second ES ("the Dust Issue");
The Statutory provisions and authorities.
"I said in R v North Yorkshire County Council, Ex p Brown  1 AC 397, 404 that the purpose of the Directive was "to ensure that planning decisions which may affect the environment are made on the basis of full information". This was a concise statement, adequate in its context, but which needs for present purposes to be filled out. The Directive requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure, namely that of an EIA. And an essential element in this procedure is that what the Regulations call the "environmental statement" by the developer should have been "made available to the public" and that the public should have been "given the opportunity to express an opinion" in accordance with article 6(2) of the Directive. As Advocate General Elmer said in Commission of the European Communities v Federal Republic of Germany (Case C-431/92)  ECR 1-2189, 2208-2209, para 35:
"It must be emphasised that the provisions of the Directive are essentially of a procedural nature. By the inclusion of information on the environment in the consent procedure it is ensured that the environmental impact of the project shall be included in the public debate and that the decision as to whether consent is to be given shall be adopted on an appropriate basis."
The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. In a later case (Aannemersbedrif P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996 ECR 1-5403, 5427, para 70), Advocate General Elmer made this point again:
"Where a member state's implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made the subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard."
24 "The local planning authority 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]".
According to Regulation 2(1),
"environmental information" means:
such a statement as is described in Schedule. 3.
Schedule 3 describes an "environmental statement" as comprising, with emphasis added:
1. a document or series of documents providing, for the purposes of assessing the likely impact upon the environment of the development proposed to be carried out, the information specified in para. 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 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 inter-action between any of the foregoing; material assets the cultural heritage;
(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects; and
"Mr Straker laid emphasis upon the fact that the local planning authority felt that, in imposing conditions, it had ensured that adequate powers would be available to it at the reserved matters stage. That, in my view, is no answer. At the reserved matters stage there are not the same statutory requirements for publicity and consultation. The environmental statement does not stand alone. Representations made by consultees are an important part of the environmental information which must be considered by the local planning authority before granting planning permission. Moreover, it is clear from the comprehensive list of likely significant effects in paragraph 2(c) of Schedule 3, and the reference to mitigation measures in paragraph 2(d), that it is intended that in accordance with the objectives of the Directive, the information contained in the environmental statement should be both comprehensive and systematic, so that a decision to grant planning permission is taken "in full knowledge" of the project's likely significant effects on the environment. If consideration of some of the environmental impacts and mitigation measures is effectively postponed until the reserved matters stage, the decision to grant planning permission would have been taken with only a partial rather than a "full knowledge" of the likely significant effects of the project. That is not to suggest that full knowledge requires an environmental information statement to contain every conceivable scrap of environmental information about a particular project. The Directive and the Assessment Regulations require likely significant effects to be assessed. It will be for the local planning authority to decide whether a particular effect is significant, but a decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it to a later stage would not be in accordance with the terms in Schedule 3, would conflict with the public's right to make an input into the environmental information and would therefore conflict with the underlying purpose of the Directive."
"Mr Howell submits that reserved matters, details of the means of access or landscaping, are capable of having an effect on the environment, that is why they are reserved for subsequent approval. That ignores the fact that the environmental statement does not have to describe every environmental effect, however minor, but only the "main effects" or "likely significant effects". It is not difficult to see why this should be so. An environmental statement that attempted to describe every environmental effect of the kind of major projects where assessment is required would be so voluminous that there would be a real danger of the public during consultation, and the local planning authority in determining the application, "losing the wood for the trees". What is "significant" has to be considered in the context of the kinds of development that are included in schedules 1 and 2. Details of landscaping in an application for outline planning permission may be "significant" from the point of view of neighbouring householders, and thus subject to reserved matters approval, but they are not likely to have "a significant effect on the environment" in the context of the assessment regulations."
Then at paragraph 126 he said:
"Whilst the Council has deferred a decision on some matters of detail, which, as Mr Beckwith acknowledges, may have some environmental effect, it has not deferred a decision on any matter which is likely to have a significant effect, or any mitigation measures in respect of such an effect."
At paragraph 131 he said:
"The Council has power to ensure that the details which come forward at the reserved matters stage are in "substantial accordance" with the Development Framework: see condition 1.7 above. It will be noted that the effect of condition 1.7 is that even where siting and means of access are reserved they will have to be substantially in accord with the Masterplan. Armed with all of this information about the proposed building on plot T, ERM were able to carry out a comprehensive assessment of its likely significant effects on the environment including, for example, its likely effect on the setting of listed buildings, and the public were able to make informed comments about the reliability of that assessment and to suggest further mitigation measures if they wished."
""Condition 1.3 states:
The development shall be carried out in accordance with the mitigation measures set out in the Environmental Statement submitted with the application, unless otherwise agreed in writing by the Local Planning Authority and unless otherwise provided for in any other condition attached to this planning permission.
No development shall be commenced until a scheme (the Framework Document) has been submitted to and approved by the Local Planning Authority showing the overall design and layout of the proposed Business Park, including details of the phasing of development and the timescale of that phasing. The Framework Document shall show details of the type and disposition of development and the provision of structural landscaping within and on the perimeters of the site. The Business Park shall be constructed in accordance with the approved Framework Document unless the Local Planning Authority consent in writing to a variation or variations.
This permission shall be not construed as giving any approval to the Illustrative Masterplan accompanying the application."
"The development on this site shall be carried out in substantial accordance with the layout included within the Development Framework documents submitted as part of the application and shown on (a) drawing entitled 'Master Plan with Building Layouts'."
29. The reason given for the imposition of this condition was:
"The layout of the proposed Business Park is the subject of an Environmental Impact Assessment and any material alteration to the layout may have an impact which has not been assessed by that process."
30. Condition 1.8:
"No building within any plot shall exceed the height specified for buildings within that plot as set out in the 'Schedule of Development submitted with and forming part of the application'."
31. Conditions 1.9 and 1.10 modified this by reducing the maximum eaves height of certain buildings in the interests of the amenity of residents in adjacent dwellings.
"The development shall be carried out in accordance with the mitigation measures set out in the Environmental Statement submitted with the application unless provided for in any other condition attached to this permission."
"The development shall be carried out in accordance with the principles and proposals contained in the Development Framework document submitted as part of the application unless provided for in any other condition attached to this permission."
"The phasing of works within the site shall be carried out in accordance with the details set out in the Section entitled 'Phasing' in the Development Framework document, subject to the detailed requirements of other conditions in this permission."
32. In respect of the Stanney Brook Corridor, condition 1.15 said:
"The area of the Stanney Brook Corridor (as defined on (a) drawing and described in the Development Framework Document) shall remain undeveloped apart from the construction of surface water attenuation areas and footpaths/cycleways."
33. The reason given was:
"to ensure that an area of undeveloped open space is retained in the interests of amenity."
34. Conditions 1.16 to 1.18 effectively divided the corridor into three parts and required the different parts of the corridor to be enhanced and landscaped in accordance with the principles shown on three application drawings and in accordance with detailed treatment to be approved in writing by the local planning authority, concurrently with the construction of building on certain of the plots. The reasons given were:
"In order to ensure the maintenance of areas of nature conservation interest and to create areas of wildlife habitat in a phased order prior to the loss of existing habitat within the application site."
The conditions in Milne as I understand it in the view of the judge placed constraints on the degree to which any decision at the reserved stage could have any environmental impact, and the constraints ensured that no decision should have a significant impact.
"Any major development project will be subject to a number of detailed controls, not all of them included within the planning permission. Emissions to air, discharges into water, disposal of the waste produced by the project, will all be subject to controls under legislation dealing with environmental protection. In assessing the likely significant environmental effects of a project the authors of the environmental statement and the local planning authority are entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority: see, for example, the assumptions made in respect of construction impacts, above. The same approach should be adopted to the local planning authority's power to approve reserved matters. Mistakes may occur in any system of detailed controls, but one is identifying and mitigating the "likely significant effects", not every conceivable effect, however minor or unlikely, of a major project."
Application of the principles
My view on construction is as follows
"To ensure the planning permission is implemented in all respects in accordance with the submitted details."
"The provision and maintenance of landscaping [around the site] is required in the interests of visual amenity."
"The provision and maintenance of landscaping [around the site] is required in the interests of visual amenity."
Paragraph 32 distinction between dust ,odour and vermin
Lord Justice Sedley:
Mrs Justice Black: