England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE RICHARDS

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2003

Lord Justice Pill:

1. This is an appeal by Bellway Urban Renewal Southern ("the appellants") against the decision of Richards J on 20 January 2003 whereby the judge, on the application of Mr John Gillespie, quashed a decision of the Secretary of State (Office of Deputy Prime Minister) dated 30 May 2002. The Secretary of State allowed an appeal by the appellants against a failure of the London Borough of Tower Hamlets to determine an application for development within the appropriate period. The application was for full and not merely outline permission.
2. Planning permission was granted by the Secretary of State for redevelopment, subject to conditions, of the site at Harford Street Gasworks, Stepney E1 for residential development of 407 units, including affordable housing, and associated development including a community health centre and community employment training accommodation. The planning appeal had been recovered by the Secretary of State for his own determination. He decided to allow the appeal, contrary to the recommendation of the Inspector who had conducted a public inquiry in November 1999. Both the appellants and the Secretary of State were granted permission to appeal against the decision of Richards J, by the judge himself, but only the appellants have pursued the appeal.
3. The relevant site is an area of about 3.5 hectares on the eastern edge of Stepney adjacent to the Regent's Canal. The western part of the site contains four gasholders and various other buildings, covering about 20% of the site. The land itself is extensively contaminated as a result of its former use. The surrounding area is predominately residential, with some commercial uses. Mr Gillespie lives near the site and gave evidence at the Inquiry as part of the Save Stepney Campaign ("SSC").
4. In his recommendations, the Inspector stated (page 111):

"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.

5. Richards J quashed the permission on the basis that an Environmental Impact Assessment ("EIA") was required before planning permission was granted. Having been made before March 1999, the application for permission was governed by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, though we were told that the 1999 Regulations are not materially different. The Regulations implement Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain projects on the environment.
6. It is common ground that the proposed development is "an urban development project" as identified in Schedule 2, paragraph 10(b) to the Regulations under the heading "Infrastructure projects". The combined effect of Regulations 2 and 4 is that environmental impact assessment ("EIA") procedures must be followed if, but only if, the "proposed development would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location".
7. This wording reflects the language of Article 2.1 of the Directive and Schedule 2 to the Regulation under the heading "Projects subject to Article 4(2)" reflects Annex 2 to the Directive. That Article provides that projects listed in Annex 2 shall be made subject to an assessment "where member states consider that their characteristics so require".
8. The Secretary of State was required in the present case to make a judgment as to whether this urban development project would be likely to have "significant effects on the environment by virtue of factors such as its nature, size or location". He decided that it did not and Richards J has held the Secretary of State erred in the test he applied.
9. Had the Secretary of State reached a different conclusion, a procedure would have been followed under the Regulations which included a requirement for the applicant for permission to provide an environmental statement as defined in Schedule 3 to the Regulations. The public consultation required by the Regulations would have followed.
10. Schedule 3 to the Regulations provides insofar as is material:

"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.

11. Department of the Environment Circular 15/88 gives guidance on the application of the 1988 Regulations. The point for determination on this appeal is not considered in the Circular and detailed reference to its contents is unnecessary. Paragraph 21 provides that:

"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."

12. The appeal site was acknowledged to include land which was extensively contaminated and the Inspector found that "because of its previous use, the site is obviously contaminated to a significant degree". The case turns on the approach of the Secretary of State to the remediation proposals made by the appellants and their relevance to his judgment as to whether an EIA was required.
13. Policy guidance in relation to contaminated land appears in PPG 23, Planning and Pollution Control, and Department of Environment Circular 7/95 on the use of conditions in planning permissions. They are relevant as part of the context in which the Secretary of State made his judgment. Annex 10 to PPG 23 provides:

"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."

14. Circular 11/95 provides, under the heading "Development of Contaminated Sites":

"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."

15. In support of their application for planning permission, the appellants submitted two reports from Merebrook Projects Ltd, specialist environmental consultants. A "site contamination remediation statement" had been submitted with the application. There is no doubt that considerable work of investigation had been done. The reports included an "outline remediation strategy". The company's director, Mr Simon Edwards, gave evidence for the appellants at the 1999 inquiry. His evidence realistically recognised that "it is clearly accepted that a significant amount of work will be needed in order to address the issue of contamination". Mr Edwards added that "this work will be carried out as an integral part of the redevelopment scheme proposed. In my opinion, this is the most efficient method of reclaiming former industrial land". He stated that on completion of the removal of structures, "it will be possible to carry out inspections of the ground conditions in those areas which have not been fully investigated to date. Investigations will involve both engineering and chemical testing". In-ground barrier installation was proposed. Mr Edwards concluded:

"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. … "

16. The appellants' planning consultant, Mr Painting, stated:

"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."

17. For the Borough Council, Mr Simmons, team leader (development control), stated:

"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."

18. Before stating his conclusions set out at paragraph 4 of this judgment, the Inspector stated:

"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."

19. In an interim decision letter dated 12 October 2000 the Secretary of State stated:

"… 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)."

20. The final decision letter, dated 30 May 2002, was issued following further representations by the parties. It was stated at paragraph 9:

"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."

21. Condition VI, in its final form, provided:

"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."

22. The judge referred to, and purported to follow, the decision of Elias J in British Telecommunications Plc & ors v Gloucester City Council [2001] EWHC Admin 1001 and that of Sullivan J in R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC Admin 2009. In relation to the earlier cases, the judge stated (paragraph 74):

"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."

23. Richards J qualified that approach, however, by reference to Lebus and to the probable environmental effects, for example, of dust generation and noise during construction work and controls placed upon them. The judge stated, at paragraph 75:

"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."

24. The judge concluded, at paragraph 79:

"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."

25. A second possible situation was considered by the judge at paragraph 81: "If, contrary to the above, it was lawful for the Secretary of State to take account of the proposed remediation measures when deciding on the likelihood of significant environmental effects, there is a further question whether the conclusion he reached was reasonably open to him". Richards J concluded that "the Secretary of State had a large amount of information as to conditions on the site and as to the principles of the remediation strategy. He was reasonably entitled to regard that information as sufficient for the purpose [of proceeding to a decision]". The judge noted that there were "uncertainties concerning the contamination under existing structures on the site and concerning the details of the remediation scheme". It was held (paragraph 89) that the Secretary of State was "entitled to conclude that the development was unlikely to cause significant environmental effects, provided that it was lawful for him to take into account the proposed remediation measures when determining whether significant effects were likely." [judge's emphasis]
26. Neither party seeks to uphold a test based on whether or not a condition is a standard condition, and rightly in my view. The decision whether an EIA is necessary, now described in the 1999 Regulations, Regulation 2, as a "screening direction", should not depend on whether a condition designed to mitigate adverse environmental effects can be described as standard.
27. For the appellants, Mr Lindblom QC submits that the two stage test stated by the judge in paragraph 79 of his judgment to be the correct approach was erroneous. In this case, the remedial works are fundamental and integral to the development proposal which could not take place without them. In making the screening decision, the Secretary of State was required to have regard to the entirety of the development project. The development proposal was predicated on the presence of remedial works and the remedial strategy was part and parcel of the development. The screening decision was required to be anterior to the consideration of the contents of the environmental statement required if the direction provided that the development was EIA development.
28. In this case, exhaustive and comprehensive enquiries into remedial measure had been undertaken, it is submitted. In answering the question whether the development would be likely to have significant effects on the environment, the Secretary of State was entitled to have regard to the evidence of those measures. The condition imposed in this case, Condition VI, was valid in planning terms and the Secretary of State was entitled, in the light of the work done and the condition to be imposed, to conclude that significant effects on the environment were not likely. Moreover, the judge's conclusion at paragraph 89 confirms that, if the test advocated by the appellants is applied, that is to take into account the proposed remedial measures, the Secretary of State was entitled to reach the decision he did.
29. In World Wildlife Fund & ors v Autonome Provinz Bozen & ors [2001] 1 CMLR 149, the European Court of Justice stated, at paragraph 37, that "the criteria or thresholds mentioned in Article 4(2) of the Directive are designed to facilitate examination of the actual characteristics of any given project in order to determine whether it is subject to the requirement to carry out an assessment". Underlining the objective of the Directive, the Court stated at paragraph 45 that no project likely to have significant effects on the environment 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". "All the elements of the project relevant to the environmental impact assessment" must also be laid down in detail if a legislative Act is to be relied on to grant consent (paragraph 59).
30. In British Telecommunications, the site to be developed was of archaeological interest and the relevance of a mitigation strategy was considered. Elias J stated:

"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 … ."

31. In Lebus, the proposed development was the erection of an egg production unit. The issue was as to the relevance of proposed pollution control measures and management techniques to the screening decision.
32. Commenting on British Telecommunications, Sullivan J stated:

"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."

33. Sullivan J described the approach of the Council in Lebus and concluded:

"… 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?"

34. In his judgment in the present case, Richards J underlined, at paragraph 75, and in my view correctly underlined, Sullivan J's statement that each case will turn upon its own particular facts and that "it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development." I do, however, agree with Mr Lindblom's submission that the judgment as to whether an EIA is required is a judgment different from and to be made before an assessment of the procedures appropriate if an EIA is held to be required.
35. I also find persuasive the submissions on behalf of the Secretary of State to Richards J in the present case, though their relevance to the test actually applied by the Secretary of State will need to be considered. As summarised by the judge (paragraph 61), they were:

"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."

36. When making his screening decision, the Secretary of State was not in my judgment obliged to shut his eyes to the remedial measures submitted as a part of the planning proposal. That would apply whatever the scale of the development and whether (as in BT) some harm to the relevant environmental interest is inevitable or whether (as is claimed in the present case) the development will actually produce an improvement in the environment. As stated in Bozen, it is the elements of the specific project which must be considered and all the elements of the project relevant to the EIA. In making his decision, the Secretary of State is not required to put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision. If the judges in the cases cited took a contrary view, I respectfully disagree, though it appears to me that both Sullivan J in Lebus and Richards J in the present case did not require all remedial or mitigating measures to be ignored.
37. The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously but the Secretary of State is not as a matter of law required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not in my judgment pre-determined either by the complexity of the project or by whether remedial measures are controversial though, in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration.
38. This approach accords with that of Sullivan J in The Queen v Rochdale MBC ex parte Milne [2001] Env LR 406 though the point in that case was a different one. It was whether a local planning authority could properly conclude that it had sufficient information to enable it to assess the likely significant effect on the environment notwithstanding that certain details of reserved matters were lacking. As Richards J, commenting on Milne in the present case, stated (paragraph 76):

"… 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."

39. It follows that I do not accept the submission of Mr Wolfe, for the respondent, that proposed mitigating measures are to be ignored when a screening decision is made or his submission that the "proposed development" for the purposes of Regulation 2 is the proposal shorn of remedial measures incorporated into it. That would be to ignore the "actual characteristics" of some projects. He is, however, correct in his submission that devising a condition which is capable of bringing the development below the relevant threshold does not necessarily lead to a decision that an EIA is unnecessary. The test stated in Bozen requires a fuller scrutiny of the likely effects of the development project. Consideration must be given to the extent of the investigation, up to the time of decision, into the impact of the development and environmental problems arising from it, the nature of any proposed remedial measures, the extent to which those measures have been particularised, their complexity and the prospects of their successful implementation (and see Annex 10 to PPG 23 and Circular 11/95 already cited). Consideration must also be given, where appropriate, to the prospect of adverse environmental effects in the course of the development, even if of a temporary nature, as well as to the final effect of the development. All aspects of the development project must be considered; the relevant considerations may be different in a case where the central problem is the eventual effect of the development upon the environment and a case such as the present where the central problem arises from the current condition of the land.
40. In my judgment the Secretary of State erred in the test he has expressed in paragraph 19 of his final decision letter. I read the second part of paragraph 19 as including an assumption that Condition VI provides a complete answer to the question whether significant effects on the environment are likely. That is too narrow an approach. In the circumstances, it was necessary to consider the stage which the site investigation had reached (Condition VI requires a future site investigation in detail to be undertaken), the nature and extent of the scheme for remediation, including its uncertainties, the effects on the environment during the remediation and the likely final result. The condition is properly drafted but itself demonstrates the contingencies and uncertainties involved in the development proposal, as does the evidence of Mr Simmons already quoted.
41. When making the screening decision, these contingencies must be considered and it cannot be assumed that at each stage a favourable and satisfactory result will be achieved. There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached. I am not concluding that the present case is necessarily one of these but only that the test applied was not the correct one. The error was in the assumption that the investigations and works contemplated in Condition VI could be treated, at the time of the screening decision, as having had a successful outcome.
42. The decision is not saved by the subsequent conclusion of Richards J that the Secretary of State was entitled to reach the conclusion he did provided he could take into account the proposed remedial measures. That conclusion was based on the same assumption, namely that the remedial measures would be effectively implemented. Mr Lindblom declined, rightly and conscientiously in my view, to assert that Richards J had not made that assumption. The judge was, for the purposes of argument, making the assumption erroneously made by the Secretary of State in his decision letter.
43. The further ground of appeal is based on the acceptance by Richards J at paragraph 77, already mentioned, of the concept of "fact and degree" in relation to the relevance of remedial measures. That left a discretion with the Secretary of State and the Court should not interfere with its exercise by him, it is submitted. That principle cannot, however, apply where the Secretary of State has applied the wrong test in reaching his decision, as in my view he has.
44. I would dismiss the appeal.

Lord Justice Laws:

45. I agree that this appeal should be dismissed. I gratefully adopt the account of the facts, the legislation, and the learning set out in the judgment of my Lord Pill LJ which I have had the advantage of reading in draft.
46. I would express my reasons for dismissing the appeal very shortly as follows. Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA. If then the Secretary of State were to decline to conduct an EIA, as it seems to me he would pre-empt the very form of enquiry contemplated by the Directive and Regulations; and to that extent he would frustrate the purpose of the legislation.
47. In my judgment it is clear from paragraphs 9 and 19 of the final decision letter dated 30 May 2002 that in concluding that an EIA was not required in this case the Secretary of State was placing very great weight on the terms of Condition VI. My Lord has set out the terms of Condition VI at paragraph 21. But notwithstanding Mr Lindblom's protestations as to the degree of detail relating to remediation which had been put before the Secretary of State, as it seems to me the very terms of Condition VI show that the nature, extent and degree of contamination present on the site had not yet been established, or precisely established; nor had the character of the site investigation that would be required. It was contemplated that that together with proposed measures of remediation would be put before the local planning authority and approved before any remediation works were done. Had an EIA been required, these were all matters which would have gone into the environmental statement under Schedule 3 to the Regulations and been subject to public consultation pursuant to the statutory scheme.
48. In the result, in my judgment the Secretary of State has deployed Condition VI effectively as a surrogate for the EIA process. That is illegitimate. Accordingly his decision cannot stand.

Lady Justice Arden:

49. I agree with both judgments. However, I would make it clear that in my view the question whether in a case such as this the Secretary of State can, in making his screening decision, take into account proposed conditions to be attached to the grant of permission turns not on the complexity or controversiality of the development as such but on the nature of the remedial measures contemplated by such conditions. Such measures can be taken into account if, fairly considered, they are of themselves unlikely to have significant effects on the environment because, for example, they are of limited impact or well-established to be easily achievable within the process of the development. Applying the foregoing, I agree that in this case the Secretary of State proceeded on the wrong basis for the reasons which have already been given by Pill and Laws LJJ. The court is required to interpret the 1988 regulations in the light of the EC Council Directive 85/37/EEC of 27 June 1985 and in a manner which gives effect to the purposes of the Directive as appearing from its provisions and its preamble. As I see it, the conclusions of the court on this appeal proceed on the basis of that approach to interpretation.
Order: Appeal dismissed with the costs. (Order does not form part of the approved judgment)