COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE RICHARDS
London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE ARDEN DBE
| Bellway Urban Renewal Southern||Appellant|
|- and -|
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David Wolfe (instructed by Richard Buxton) for the respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Pill:
"There are heavily weighted factors in favour of the proposed development. It would represent an opportunity to build houses on a brownfield site in an area of Inner London where more homes are needed and would help to meet the Government's target for brownfield housing in the South-East of England … . Contaminated land would be remediated and bought back into beneficial use … ."
The Inspector recommended that the appeal be dismissed: "due to the presence of nationally significant gasholders on the site and the policy of both the Government and the Development Plan to preserve such archeologically important features". The Secretary of State took the view that the need for the proposed development outweighed both the presumption in favour of preservation of the archaeological remains and the conflict with the Unitary Development Plan.
"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 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;
(e) a summary in non-technical language of the information specified above."
Paragraph 3 of the Schedule provides that an environmental statement may include further information "by way of explanation or amplification of any specified information". It may include (sub-paragraph (e)) "the likely significant direct and indirect effects on the environment" of the development and "effects" is said to include "secondary, cumulative, short, medium and long term, permanent, temporary, positive and negative effects". That provision also reflects the language of the Directive.
"It must be emphasised that the basic test of the need for environmental assessment in a particular case is the likelihood of significant environmental effects, and not the amount of opposition or controversy to which the project gives rise, except to the extent that the substance of opponents' arguments indicates that there may be significant environmental issues."
"8. However if it is known or strongly suspected that the site is contaminated to an extent which would adversely affect the proposed development or infringe statutory requirements, an investigation of the hazards by the developer and proposals for any necessary remedial measures required to deal with the hazards will normally be required before the application can be determined by the local planning authority. Certain aspects of such investigations, such as drilling boreholes, may require separate planning permission or approval by other statutory authorities. Planning permission may need to include conditions, for example requiring certain remedial measures to be carried out.
9. … .
10. If the information provided by the applicant is insufficient to enable the authority to determine the application, the authority may request further information. Should the degree of contamination be such that remedial action is required to safeguard future users or occupiers of the site or neighbouring land, or protect any buildings or services from the hazards, then planning permission may be granted subject to conditions specifying the measures to be carried out."
"73. Land formerly used for industrial purposes or for waste disposal can be contaminated by substances that pose immediate or long-term hazards to the environment or to health, or which may damage any buildings erected on such sites. Contaminants may also escape from the site to cause air and water pollution and pollution of nearby land; the emission of landfill gas may be particularly hazardous. In these circumstances, appropriate conditions may be imposed in order to ensure that the development proposed for the site will not expose future users or occupiers of the site, any buildings and services, or the wider environment to risks associated with the contaminants present. However, local planning authorities should base any such conditions on a site-specific assessment of the environmental risks which might affect, or be affected by, the particular proposed development.
74. If it is known or strongly suspected that a site is contaminated to an extent which would adversely affect the proposed development or infringe statutory requirements, an investigation of the hazards by the developer and proposals for remedial action will normally be required before the application can be determined by the planning authority. Any subsequent planning permission may need to include planning conditions requiring certain remedial measures to be carried out."
"The scheme which is put forward in my proof is not final for the reasons set out, however I believe sufficient detail has been provided to allow the Inspector to make a decision on the scheme. … "
"The difficulty in regenerating the site lies in the nature of the previous use of the site, which as demonstrated by Mr Edwards, has resulted in extensive contamination of the land. This presents a considerable barrier to ensuring the redevelopment of the site. Remediation, in my view, would therefore represent considerable planning benefit in its own right, as recognised by Government guidance. … Accordingly, any redevelopment proposals must account for this additional, and abnormal, requirement."
"Because of its previous use the site is undoubtedly contaminated to a significant degree. However the type and extent of the contamination is not fully known in that survey work that has been undertaken is undoubtedly of a preliminary nature … The council has been anxious to have as much survey work as possible available to it because the results are likely to influence both the layout and details of the proposal … The council would accept the imposition of a condition requiring further contamination survey work to be undertaken after determination. However, … the council is concerned that the results may have an influence as to the extent to which houses with gardens could and should be provided."
"Because of its previous use, the site is obviously contaminated to a significant degree. The type and extent of the contamination is not fully known at this stage. I am satisfied that sufficient basic information has been made available to the appellants to enable them and the Council to conclude on the most effective way to proceed with developing a programme for decontamination of the site whilst further submissions required by planning conditions are being prepared, subject to planning permission being granted. Further investigation such as a risk assessment would be undertaken prior to deciding on the most appropriate method of remediation. Environmental Impact Assessment was not required for the proposal as provided for under the appropriate regulations. The Council considers the imposition of an appropriately worded condition would ensure that the issue of contamination would be properly addressed. The Environment Agency accepts that contamination could be dealt with by planning conditions.
PPG23 supports remediation strategies which address contamination in situ. Therefore, the tar tanks and the most contaminated land may well remain on the site depending what is found in the more detailed investigations. Nevertheless, despite the concerns of the Save Stepney Campaign (SSC) and other local residents, decontamination procedures would be consistent with government policy in PPG23. I accept that the planning conditions as agreed between the appellants and the Council would provide for an appropriate remediation strategy for the site if planning permission were to be granted."
"… The Secretary of State considers that the development would be unlikely to have significant effects on the environment and thus, pursuant to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, the development does not require an environmental assessment. The Secretary of State also agrees with the Inspector's conclusion that the scheme would provide the opportunity to bring this contaminated site back into beneficial use (IR 14.16) and he concurs with the Inspector's view that the decontamination procedures would be consistent with government policy on Planning and Pollution Control in PPG23 (IR 14.6)."
"As to other the points raised by SSC on decontamination, the Secretary of State has taken these into account, but he is of the view that the conditions attached to the permission, which address the decontamination issue, will ensure that there will not be unacceptable risks to health or the environment"
His general conclusion in relation to an EIA, at paragraph 19, was:
"The Secretary of State considers that there is sufficient information available to come to a view that the proposed development is unlikely to cause significant effect on the environment and therefore an environment assessment is not required having regard to the Town & Country Planning (Assessment of Environmental Effects) Regulations 1988. The Secretary of State is satisfied that the remediation work required can be dealt with by condition and that condition VI sets out the procedure to be followed by the developer and does not indicate the likelihood of significant effects on the environment."
"Before any development commences a detailed site investigation shall be undertaken to establish the nature, extent and degree of the contamination present on the site. The scope, method and extent of this site investigation shall be submitted to and approved by the local planning authority prior to the commencement of the site investigation. The site investigation work shall also propose a scheme for remediation of this contamination, including measures to be taken to minimise risk to the public, the environment and prevention of contaminated ground and surface water from escaping during the remediation, together with provisions for monitoring during and after remediation. The detailed site investigation shall be submitted to and approved in writing by the local planning authority prior to the commencement of the remediation works on site and no remediation or development works on site shall proceed other than in accordance with the approved measures."
"That suggests that, in deciding whether an EIA is required, the focus should be on likely significant environmental effects rather than on remediation or mitigation measures; and if a decision runs two issues together and rests on the view that remediation measures will be effective to prevent otherwise significant effects, it deprives the public of the opportunity to make informed representations in accordance with the EIA procedures about the adequacy of such measures."
"Such controls, however, are standard and are standardly dealt with by conditions. It cannot be right that mitigation measures of that kind have to be ignored when determining whether a development is likely to have significant environmental effects."
At paragraph 76, the judge added:
"Thus, as it seems to me, it was clearly contemplated that various requirements relating to mitigation measures or feeding through into mitigation measures could properly be taken into account in assessing the likely significant environmental effects of a development."
"On that basis the Secretary of State's decision in the present case suffered from a similar flaw. I have already indicated that it must have been based in part on an assessment that the proposed remediation measures would be effective to prevent the significant environmental effects that were otherwise likely to arise. The Secretary of State was considering not just the operation of standard conditions, but special and elaborate remediation measures that would be needed in this case if significant effects were to be avoided. He erred in taking those remediation measures into account in deciding whether the development was likely to give rise to significant environmental effects. The correct approach would have been to hold that significant effects were likely and that an EIA was therefore required, leaving the suitability and effectiveness of the proposed remediation measures to be discussed and assessed in the context of the EIA procedures."
"73. … There is no doubt that it is for the planning authority to decide in the first instance whether or not there are likely to be significant effects on the environment such as to warrant an environmental statement. Can they conclude that there would be significant effects, save for the fact that they have required (or at least will require) the developer to take mitigating steps whose effect is to render such effects insignificant? In my judgment they cannot. Paragraph 3 of Schedule 2, [the reference must be intended to be to paragraph 2 of Schedule 3 of the 1988 Regulations] which sets out the information required (and in turn reflects Article 5 of the Directive read with Appendix IV) requires amongst other things that there is a description of the measures envisaged to "avoid, reduce and if possible remedy" adverse effects. The purpose is surely to enable public discussion to take place about whether the measures will be successful, or perhaps whether more effective measures can be taken than those proposed to ameliorate the anticipated harm. In my opinion, therefore, the question whether or not there are likely to be significant environmental effects should be approached by asking whether these would be likely to result, absent some specific measures being taken to ameliorate or reduce them. If they would, the environmental statement is required and the mitigating measures must be identified in it.
74. In this case it is clear that there would be potentially highly significant effects on the archaeology, unless measures are directed to eliminate them. Accordingly, [the officer] erred in law in taking these measures into account when deciding that no significant effect was likely … ."
"Whilst each case will no doubt turn upon its own particular facts, and whilst it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development, the underlying purpose of the Regulations in implementing the Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures.
It is not appropriate for a person charged with making a screening opinion to start from the premise that although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds. The appropriate course in such a case is to require an environmental statement setting out the significant impacts and the measures which it is said will reduce their significance."
"… In so far as one can discern the Council's reasoning, it was erroneous on the two grounds set out above: it was no answer to the need for an EIA to say the information would be supplied in some form in any event, and it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects?"
"On the information before him the Secretary of State was entitled to form the judgment that a development carried out in accordance with the stated remediation strategy was unlikely to give rise to significant effects. He was entitled to take the view that the outstanding details of the remediation works and the elements of uncertainty were not such as to affect that judgment or to create a likelihood of significant effects. In other words this was a case where the Secretary of State was reasonably satisfied that the boundary would not be crossed."
"… it was clearly contemplated that various requirements relating to mitigation measures or feeding through into mitigating measures could properly be taken into account in assessing the likely significant environmental effects of a development."
Lord Justice Laws:
Lady Justice Arden: