ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Michael Supperstone Q.C.)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE JACKSON
| THE QUEEN
(on the application of BATEMAN)
|- and -
|SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL
|- and -
|CAMGRAIN STORAGE LIMITED
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Mr. Meyric Lewis (instructed by South Cambridgeshire District Council) for the respondent
Mr. Robert McCracken Q.C. (instructed by Kester Cunningham John) for the interested party
Hearing dates : 14th January 2011
Crown Copyright ©
Lord Justice Moore-Bick :
"33. As a starting point, authorities should study Schedule 3 to the Regulations (reproduced at Annex B to this Circular) which sets out the 'selection criteria' which must be taken into account in determining whether a development is likely to have significant effects on the environment. Not all of the criteria will be relevant in every case. It identifies three broad criteria which should be considered: the characteristics of the development (eg its size, use of natural resources, quantities of pollution and waste generated); the environmental sensitivity of the location; and the characteristics of the potential impact (e.g. its magnitude and duration). In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:
a. for major developments which are of more than local importance (paragraph 35);
b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and
c. for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42).
34. The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment."
"1. The site lies within the countryside and beyond the West Wratting village framework, as defined in the South Cambridgeshire Local Development Framework 2007. The proposed application site, as enlarged, extends to 11.3 hectares, and the proposal involves the creation of an additional 210,000 tonnes of storage (60 new storage silos), a 3000m˛ extension to the flatstore facility, new holding bins and plant house and driers.
2. The size of the facility, as extended, exceeds the 5 hectare and 10,000m˛ limits suggested within paragraph A19 of Annex A of Circular 02/99. However, these suggested limits particularly apply to previously undeveloped sites. It may therefore be more appropriate to consider the threshold suggested within paragraph A17, which states that an EIA is more likely to be required if the site exceeds 20 hectares, in which case the site, as extended, would be well under this threshold.
3. The site is not within the floodplain or in an area of high-medium flood risk, no public right of way is affected by the proposal, and there are no Tree Preservation Orders within the site. In addition, the proposal does not affect a Scheduled Ancient Monument and the development is not within an environmentally sensitive area.
4. The main impacts of the development are likely to be: increase in traffic movements, landscape impact, and noise disturbance to nearby residents. Transport, Landscape and Noise Assessments are to be provided with the application.
5. Having regard to the selection criteria in Schedule 3 to the Regulations, particularly noting the size of the development, cumulation with the existing development and potential impact, it is considered that this major development will not have more than local importance, will not be proposed for a particularly environmentally sensitive or vulnerable location, and will not have unusually complex and potentially hazardous environmental effects."
"59. . . . effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request . . .
60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made.
. . .
63. While as is clear from the reply to the first question, the reasons need not necessarily be contained in the determination not to carry out an EIA itself, the competent administrative authority can, under the applicable national legislation or of its own motion, indicate in the determination the reasons on which it is based.
64. In that case, the determination must be such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention.
65. It cannot, in those circumstances, be ruled out that in the case in the main proceedings the Secretary of State's reasons might be considered sufficient, taking into account, in particular, factors which have already been brought to the attention of interested parties, provided that the latter can ask for and obtain from the competent authorities, subject to judicial review, the necessary supplementary information to fill any gaps in that reasoning."
"If it is obvious that there are no significant effects on the environment, such a screening can be sufficiently documented by a single sentence. If, on the other hand, certain possible environmental effects have already been raised, more extensive statements are needed to show that those effects have been properly considered. The case-law on the obligation to state reasons under primary law offers guidance here. According to that case-law, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not show that there is a possibility of significant effects on the environment." (Emphasis added.)
"The application involves the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production)."
Lord Justice Jackson:
Lord Justice Mummery:
"…it was not incumbent on the council to set out all the considerations it had taken into account. ..It set out the essence of its reasoning and that was enough."