IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE OUSELEY)
B e f o r e :
(Dame Elizabeth Butler-Sloss)
LORD JUSTICE LAWS
LORD JUSTICE WALL
|YOUNGER HOMES (NORTHERN) LIMITED||Claimant/Appellant|
|(1) FIRST SECRETARY OF STATE|
|(2) CALDERDALE METROPOLITAN BOROUGH COUNCIL||Defendants/Respondents|
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MR J LITTON (instructed by the Treasury Solicitors) appeared on behalf of the First Respondent
MR V FRASER QC (instructed by Calderdale Metropolitan Borough Council) appeared on behalf of the Second Respondent
Crown Copyright ©
"1. On 23rd July 1999 a group of developers sought planning permission for a predominantly retail development with a swimming pool and car parking on a 3.777 hectare site in Brighouse, Calderdale, upon which stood substantial redundant agricultural foodstuff mills and silos. In May 2000, the application was called in and, following an Inquiry in January 2001, the First Secretary of State wrote to the parties in August 2001 saying that he was minded to grant planning permission subject to an agreement under section 106 of the Town and Country Planning Act 1990, which tied the development to certain infrastructure improvements. In March 2002, one of the landowning developers sold its landholding, which was a substantial part of the site, to the present Claimants. They are housebuilders who wished to develop the site or their part of it for a residential scheme. The First Secretary of State refused their request that he reopen the inquiry. The section 106 agreement was eventually signed by the other developers and, on 14th November 2002, the First Secretary of State finally issued the planning permission.
2. The Claimant challenges that decision under section 288 of the Town and Country Planning Act 1990 on the grounds that the First Secretary of State failed to make or to consider making a screening direction pursuant to regulations 6 and 8 of the Town and Country Planning (Environmental Impact Assessment) England and Wales Regulations 1999, SI 293. These give effect to the Environmental Assessment Directive 1985 as amended in 1997. The Claimant contends that reliance by the First Secretary of State for these purposes on any apparent screening opinion of the Calderdale Metropolitan Borough Council, the Local Planning Authority, given in early August 1999 was ineffective because, for a variety of reasons, that screening opinion was unlawful. Hence the planning permission was not within the powers of the 1990 Act and fell to be quashed. In the absence of a valid screening opinion, the obligation to subject development likely to have a significant effect on the environment to an environmental impact assessment could not be fulfilled. The Claimant expects that, if not quashed, the planning permission will become the basis for compulsory purchase of its interests."
"In order for the obligation in regulation 3(2) to work, it is necessary that there be a system in place for considering whether any application which falls within Schedule 2 is also EIA development because it is likely to have significant environmental effects."
The Regulations indeed provide such a system. I should first set out the definition in regulation 2(1) of "screening opinion": "a written statement of the opinion of the relevant planning authority as to whether development is EIA development". "Screening direction" means: "a direction made by the Secretary of State as to whether development is EIA development".
"... paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."
Regulation 5 provides so far as material as follows:
"(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.
(2) A request for a screening opinion shall be accompanied by ... [various matters are set out]
(3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.
(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.
(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request.
(6) Where an authority -
(a) fail to adopt a screening opinion within the relevant period mentioned in paragraph (4), or
(b) adopt an opinion to the effect that the development is EIA development;
the person who requested the opinion may request the Secretary of State to make a screening direction."
"Where it appears to the Secretary of State that an application for planning permission which has been referred to him for determination -
(a) is a Schedule 1 application or Schedule 2 application; and
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,
paragraphs (3) and (4) of regulation 6 shall apply as if the referral of the application were a request made by the applicant pursuant to regulation 5(6)."
Regulation 6 paragraphs (3) and (4) provide as follows:
"(3) The Secretary of State shall, if he considers that he has not been provided with sufficient information to make a screening direction, notify in writing the person making the request pursuant to regulation 5(6) of the points on which he requires additional information and may request the relevant planning authority to provide such information as they can on any of those points.
(4) The Secretary of State shall make a screening direction within three weeks beginning with the date of receipt of a request pursuant to regulation 5(6) or such longer period as he may reasonably require."
"(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.
(2) The events referred to in paragraph (1) are ...
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
(3) A direction of the Secretary of State shall determine for the purposes of these regulations whether development is or is not EIA development ...
(6) Where -
(a) a local planning authority adopt a screening opinion; or
(b) the Secretary of State makes a screening direction under these Regulations;
to the effect that development is EIA development -
(i) that opinion or direction shall be accompanied by a witness statement giving clearly and precisely the full reasons for that conclusion; and
(ii) the authority or the Secretary of State, as the case may, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (i) to the person who proposes to carry out, or who has carried out, the development in question."
Regulation 4 shows how the making of a screening direction by the Secretary of State under regulation 6(4) is carried through into the process for granting or refusing planning permission for EIA development.
"In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are on a markedly different nature or there is a high level of contamination."
Then there is a crossreference to paragraph 41 which I need not read. A19:
"Development proposed for sites which have not previously been intensively developed are more likely to require EIA if: the site area for the scheme is more than 5 hectares; or it would provide a total of more than 10,000m² of new commercial floor-space; or
the development would have significant urbanising effects in a previously non-urbanised area [and an example is given of that last instance."
"Dear Mr Crawshaw
Further to your recent telephone conversation with Mr Melhuish concerning the above, I can confirm that a screening opinion in respect of the Town and Country Planning (Environmental Impact etc) Regulations 1999 was made following receipt of the application pursuant to paragraph 5 of those Regulations. The view was taken that an EIA was not required for the following reasons: -
'A site of 3.77 ha, again for retail (and leisure) purposes which therefore falls into the same category as the above ie S10(b) of Schedule 2.
This time the site is already built-up with massive silos occupying the centre of the site. Para A18 of the advice is therefore relevant - "EIA ... unlikely unless scale of development is significantly greater". In volume, that is unlikely to be the case although the main retail block would cover a larger ground area. (However, most of the site is already tarmac covered/occupied by buildings). Overall, the scale of redevelopment is considered similar; the traffic impact will be greater in attracting numbers of cars, but the closure of Mill Royd Street will reduce the cross-site movements, so in traffic terms it is a case of swings and roundabouts. There is unlikely to be a high level of contamination.
Site not considered to fall into Para 33/a/b/c therefore EIA not required".'
"6.15. The authority to determine the necessity for environmental assessment in respect of planning applications or requests for opinions on the necessity for such requirements".
Mr Raper stated in paragraph 2 of his first statement that this was one of the delegated functions exercised by senior planning officers such as himself in the director's name and with his authority, and on this particular occasion, as it happens in the absence on leave of Mr Melhuish (the planning officer otherwise dealing with the matter), he, Mr Raper, exercised the function in question by giving the screening opinion.
"Powers delegated to officers
In introducing the proposed delegations to officers the Chief Executive explained that these represented a significant change from the current approach. The proposals provided in essence a general authority to action Council policy as distinct from the current list of specific powers."
That is a summary of what was being said by the Chief Executive at the relevant meeting, then the actual executive provisions relating to delegation are in numbered paragraph as follows:
"1. The Chief Executive is the head of the Paid Service and has authority over all other Chief Officers so far as is necessary for efficient management and for carrying out the Council's functions.
2. The Chief Executive and Directors referred to as 'the Council's Chief Officers' in this part of the Standing Orders are empowered to act and take decisions in the name of the Council. Other officers may from time to time be authorised to act on behalf of the Council by the Cabinet Committees and are referred to as 'authorised officers' in this part of the Scheme of Delegation.
3. The Council's Chief Officers may authorise officers in their Department to exercise on their behalf powers delegated under this Standing Order. However, actions and decisions taken under that authority must be taken in the name of the Chief Officer concerned and remain his or her responsibility."
I may break off there.
"I have consulted the Chief Planning Officer in relation to those officers within the Planning Service who were authorised to approve planning applications at that time. He advises that decisions on planning applications at that time were made in the Chief Officer's name by a panel consisting of at least two of the principal planning officers in the Planning Service."
Mr Burton says that this was incorrect. I am prepared to accept that that was so. The evidence of Mr Raper, Mr Norrie and Mr Burton is that Mr Raper was authorised. It is possible (it is unnecessary to speculate) that this reference in the letter to the approval of planning applications is a reference only to the mechanics of the actual grant or refusal of planning permission. However that may be, after much pressure from the court Mr Harwood at length accepted that in August 1999 the Director of Environmental Services was empowered to authorise Mr Raper to make his screening opinion. He accepted also that if Mr Raper enjoyed a general authority, he had no need to seek a specific authority.
"Actions and decisions taken under that authority must be taken in the name of the Chief Officer concerned and remain his or her responsibility."
Mr Raper's manuscript note, so far as the evidence shows, was unsigned, undated and bore no statement to the effect that it was made in the name of the Director of Environmental Services or anyone else. In those circumstances, Mr Harwood submits that the note was not in fact made in the name of the Chief Officer. This was not an assault on Mr Raper's honesty. The submission, in truth, is that the note cannot in law be treated as having been made in the name of the Chief Officer.
"The argument in paragraph 18 of the skeleton [that concerns this point] confuses form with substance. Provided it was the case, as the Judge found as a fact, that Mr Raper did act in the name of the Director, his failure to recite that on the document does not invalidate the latter."
That comment seems to me to be as apt to the facts as we know them in light of the new evidence as it was apt in the light of the facts presumed by Ouseley J.
"a written statement of the opinion of the relevant planning authority as to whether the development is EIA development."
"I was aware from knowledge of pre-application discussions with the applicant that a Traffic Impact Assessment was to be submitted along with the application. This TIA was expected to cover all traffic matters, including off-site impacts (and did indeed do so). With this expectation, I did not consider that traffic matters in themselves would have necessitated submission of an EIA since this would have involved unnecessary duplication. Nevertheless in assessing the need for an EIA I did give consideration to the questions of both the diversion of the existing traffic and distribution of traffic likely to be generated by the development (particularly cars) on to both the existing nearby road network and the new road to be built west of the site (to accommodate existing North-South traffic movements). My conclusion, based on my knowledge of the proposal and its location, was that on balance its impact would not be so significant as to justify the need for an EIA."
"If any person ...
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds —
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section."
"On any application under this section the High Court ...
(b) if satisfied that the action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that action."
"... since the Directive required not only that decisions as to such projects were made on the basis of full information but that the information be obtained by means of a particular procedure, namely an environmental impact assessment, as provided for by the Regulations and including the requirement for a statement as described in Schedule 3, it was not open to the court to dispense retrospectively with that requirement on the ground that the outcome would have been the same; that, save possibly where the flawed procedure had in fact amounted to a substantial compliance with the Directive, the court ought not to exercise its discretion under section 288(5)(b) of the 1990 Act to uphold a planning permission granted contrary to the provisions of the Directive, since to do so would be inconsistent with the court's obligations under European law to enforce Community rights; and that, accordingly, since in any event the making available at the public inquiry of a disparate collection of documents produced by parties other than the developer had not amounted to substantial compliance with the terms of the Directive, the Secretary of State's ultra vires decision to proceed without consideration of the need for an environmental assessment under the Regulations could not be upheld and the grant of planning permission would be quashed."
"67. However, Mr Harwood also submitted that the screening opinion was flawed because of more significant procedural failings. It is a requirement of regulation 5(5) that the screening opinion be sent to the applicant for planning permission. It is accepted that that was not done. I should point out that the applicant for planning permission has not complained about that; it is a rival commercial developer, seeking to stop the development applied for who is trying to take advantage of that omission. It is also a requirement of regulation 20 that the screening opinion be placed on the planning register. Again it is common ground that it was not placed on the planning register. It is a requirement of the Directive that the screening opinion be made available to the public. That requirement has been transposed into domestic law by the requirement to place the screening opinion on the register. Accordingly, although the screening opinion was in fact available to the public, because the screening opinion was on the publicly available files of the local planning authority at various times and the letter of 4th July 2000 was always on the file, the requirement of the regulation transposing the Directive was not met.
68. Mr Harwood appeared to submit that these failings by themselves meant that the Secretary of State's decision should be quashed and that only a very limited discretion was available to the court as a result of the decision of the House of Lords in Berkeley. I do not accept any such submission. Assuming for the moment that a flaw in the procedures of the sort here are capable of giving rise to a section 288 challenge, I do not see that they fall within 288(1)(b)(i) - action not within the powers of the Secretary of State - rather than within (ii) - a failure to comply with relevant requirements.
69. If they fall within the latter, it is necessary for the Claimant to show that its interests have been substantially prejudiced by that failure before the discretionary power to quash arises under section 288, however limited that may be, section 288(5(b). There is no evidence that the Claimant's interests have been prejudiced at all, nor is it possible to see how they could be. It acquired its interests in the site in March 2002, knowing of the call-in, the Inquiry and of the minded-to-grant letter. It did not pursue any interest in the decision made in 1999 about whether an environmental statement was necessary until after planning permission had been granted in November 2002, following conclusion of the section 106 agreement. It has not been remotely affected by the procedural failures; rather it has been provided with an uncovenanted opportunity to attack the planning permission.
70. In so far as it was ever suggested that that failure could fall within section 288(1)(b)(i) because of the European Directive background in the Berkeley decision, it is misconceived. The failure on the part of the Secretary of State in Berkeley to consider whether the development required environmental assessment led to the decision to grant planning permission being void under section 288(1)(b)(i), because it was implicit in the then regulation 3 that he had to consider that point in order to comply with the statutory duty in regulation 3, the then equivalent of regulation 4 of the 1999 Regulations. By regulation 25 (the equivalent of regulation 30 in the 1999 Regulations) a breach of regulation 3 meant that the subsequent decision was not within the powers of the Secretary of State. The limited discretion which in those circumstances was available under domestic law was further constrained by the need to ensure compliance with EC obligations contained within the Directive and Treaty. There had been no substantial compliance with the obligation to consider the issue; it was a misconception to treat the process of environmental assessment as simply being the furnishing of information to the decision-maker. It would therefore have been wrong to allow the exercise of the residual discretion to uphold the decision on the basis that it would have made no difference to the decision if there had been an environmental statement.
71. However, those considerations do not apply to the breach of Regulations here, even though they are part of the transposition of EC obligations into domestic law. They are procedural provisions which cannot, on any view of the Regulations or Directive, go to the question of whether there had been a breach of regulation 5 or 8 or of Article 4(4) of the Directive. The now explicit obligation to consider whether development was EIA development was in fact fulfilled. The effect of regulation 30 is to make a breach of regulation 3 or 25 one which causes the decision to fall outside the powers of the Secretary of State. Those provisions were not breached."
"41. Mr McCracken submits that the breach of regulation 21(1) cannot possibly be characterised merely as "a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive", such as alone Lord Hoffmann appears to have contemplated could properly escape the extreme sanction of the permission being quashed. The flagrant breach of regulation 21(1) here, he points out, was something quite different from the scenario postulated in paragraph 51 of Richards J's judgment (as set out at paragraph 34 above). A venial error of that nature, he accepts, could well be excused as falling within Lord Hoffmann's exception to the basic principle (akin, suggests Mr McCracken, to the operation of the slip rule). Not so a failure to recognise until long after the decision was taken that reasons needed to be given for it.
42. This whole argument to my mind reads altogether too much into Berkeley. It is not necessary to go as far as Carnwath LJ recently went in Jones -v- Mansfield District Council  EWCA Civ 1408 in suggesting the true reach of the Berkeley principle was narrow - a view which Mr McCracken suggests was both obiter and arrived at without argument - to conclude, as I do, that Richards J's reasoning and decision in the instant case sit perfectly comfortably alongside that authority.
43. In short, I fully concur with the judgment below in respect of the entirety of the EIA-based part of this challenge and rather regret that, instead of simply saying so in the baldest terms, I have somewhat slavishly followed the convention of addressing at least the bulk of the arguments afresh."
I will not with great respect cite Richards J's judgment in that case. It is in the bundle before us and of course can be read by anyone interested in the matter.
Order: Appeal dismissed. The appellant to pay the first respondent's costs to be subject to a detailed assessment. Costs order below undisturbed.