ON APPEAL FROM THE HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE FARMER)
Cardiff Civil Justice Centre
2 Park Street
B e f o r e :
LORD JUSTICE PITCHFORD
MR JUSTICE LLOYD JONES
|- and -
Welsh Ministers and Wrexham CBC
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No : 020 7404 1400 Fax No : 020 7831 8838
Official Shorthand Writers to the Court)
Mr Clive Lewis QC (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
Mr Stephen Sauvain QC (instructed by Geldards) appeared on behalf of the Second Respondent.
Crown Copyright ©
Lord Justice Laws:
"6) Prior to the commencement of the development hereby permitted a survey of the application site shall be carried out to determine the numbers of GCN present on the land and a scheme submitted to the Mineral Planning Authority, for approval by them. Such schemes shall provide details of a rescue programme for the relocation of the numbers of GCN which may be identified in the survey."
7) The land filling operations hereby permitted shall not be commenced until the GCN identified by the survey required by Condition 6 have been relocated in a suitable alternative habitat provided in accordance with a scheme to be agreed, in writing, with the Minerals Planning Authority."
"There is no question that these conditions relate to future need."
Tipping or landfill operations had not yet occurred on that part of the planning permission site which formed the SAC: see paragraph 47 of the inspector's report. The inspector concluded and the Ministers agreed that (paragraph 153 of the report):
"...subject to the submitted modifications, each Order is necessary and sufficient to safeguard: the integrity of the SAC, and populations of great-crested newts and other amphibians within the SAC, the SSSI and the amphibian compensation areas."
"To conclude, we wish to affirm that the outcome of the Modification orders will be to reduce any adverse effects on the environment and will prevent any significant effects on landfill or mineral extraction on statutory sites, their associated features and on the conservation status of European protected species. We therefore consider that an EIA is not required for the purposes of informing the modification order process."
The EAW observed:
"The three Hafod Quarry Landfill Modification Orders 2007 [I interpolate that includes the modification order not under challenge] update the relevant Planning Permissions to reflect the status of the SSSI/SAC …, and their specific exclusion from the proposed uses of the land and, in this respect brings the planning permissions in line with the Environmental Permitting (England and Wales Regulations) 2007 permit issued in 2004. It is not considered that the works under the terms of the Modification Orders are likely to have a significant impact on the environment. It is considered that these proposals will encourage an extension of the designated sites, which is welcomed by the Environment Agency."
"It seems to me that it is clearly not only consistent with but applies the approach that it is necessary to look at the effect of any modification or modifications on the project, or on the development, and to see whether the whole as modified, has or is likely to have other significant effects which need to be taken into account and may require an environmental assessment, albeit that they do not fall themselves within the criteria which have been adopted by the Member State."
This reasoning, with great respect to Collins J, is a little opaque. The correct position is in my judgment as follows, at any rate in relation to the present case.
- The question for the Ministers was whether the "project" constituted by the orders would have significant environmental effects.
- The project is and is only the changes to the planning permissions effected by the orders. These were changes to another project earlier authorised by the two planning permissions. The orders effecting such changes constitute a distinct project within the meaning of the directive: see Annex 2 paragraph 13. Compare R(Barker) v Bromley London Borough Council  IAC 470 paragraphs 22 to 25.
- Accordingly the environmental impact of the orders had to be assessed, as it seems to me, by reference to this question: what environmental difference did they make to the scheme? The Ministers were not required to revisit the effects of the original scheme as such. The issue may well be described as concerning the overall or cumulative effect of the changes, but it is the changes and their consequences that have to be considered. It is, I think, of the first importance to have in mind that the orders granted no permission for landfilling. They did not permit landfilling in any place where it was not permitted by the parent planning permissions.
- I do not consider that authorities such as Brown v Carlisle City Council  EWCA Civ 523 assist the appellant, though Sullivan LJ's judgment in that case was pressed upon us by Mr Harwood this morning. In that case it was held, on the facts, that the airport works were part of the cumulative effect of the freight distribution centre, but it is plain that the learned Lord Justice concluded that the question as to cumulative effects was one of fact. It is useful to consider paragraph 21 and 25 of the judgment in that context.
"The proposed modification would exclude mineral extraction from within the SAC, prevent tipping on the SAC and require the remainder of the site to be restored in accordance with a revised restoration scheme that also excludes the SAC. The planning merits of this proposal and particularly its impact on conservation interests within the SAC were considered at appeal in 2004. While the appeal was later put aside the inspector found that the modifications proposed would not cause harm to those interests."
And then it continues:
"In terms of the potential environmental effects the key issues relate to the following...
(b) The working area is located further away from the existing housing than the current permission presently allows;
(c) There would be no further increase in visual impact;
(d) Predicted waste flows are no worse than the original approval (duration of works).
The principle of development has previously been established by the 1995 permission. Having considered all the relevant information I do not consider a modification of the permission to exclude mineral extraction and tipping from the SAC and to revise the final landform to reflect that last considered at appeal in 2004 will give rise to any further significant environmental effects or raise issues other than those of local significance.
Therefore an Environmental Impact Assessment is not required in this instance based upon the information known at this stage."
"Even if an EIA was required, it would have to compare any development allegedly authorised by the Modification Order with a baseline position represented by the development which already has planning permission. The highest case that could be put is that the Modification Orders authorise a level of development commensurate with that which would result from the existing planning permissions. That does not indicate an environmental impact over and above that already permitted. ..."
Then the Baker case was referred to :
"...which was dealing with an entirely different situation, [which] is that there is a need to look at any cumulative effect. Here the orders would actually substantially reduce the development that would be permitted such that the potential impact would be similarly reduced."
"If EIA was required, there would be a need to compare the environmental effect likely to arise from the modified development with that which would result from the implementation of the unmodified planning permissions. At worst, the modified development would be comparable with that resulting from implementation of the existing permissions outside the SAC…. In such circumstances I cannot see how any likely environmental effect would be greater, and it would probably be less with the reasons given in paragraph 143 below."
Accordingly, in my judgment, ground 1, grounds 4 and 5 associated with it fail. The Ministers asked the right legal question and provided a legally sustainable answer. I turn to ground 2.
"134. Phased development Plan JB1 has been incorporated into the two landfill planning permissions. It would appear that the intention was that the phases would be tipped in an alphabetical sequence, reflecting the fact that mineral extraction would still be ongoing. However, there is nothing on the plan or in the permissions which requires an alphabetical sequence and there is no evidence that there was a planning reason to do so. In practice, there would also be a need for different areas to support other areas and it would have been inevitable that more than one Phase would be under development at any time."
135. Although phases C and D could not be fully implemented, because that would intrude into and have a significant effect on a European site, considerable parts, including the whole of sub-phase D2, lie outside the SAC. On the basis of the evidence submitted and what I saw on the site visit, I am satisfied that they could be partly filled without encroaching onto the SAC. Even if there was a need to progress alphabetically, there is nothing in the plan or in the permissions to require one phase to be tipped to any particular level or completed before moving to another phase."
"137. Restoration Concept Plan R48/19B has also been incorporated into the two landfill planning permissions. However, it is only a concept plan and condition 29 of the permissions requires that restoration details for each phase be submitted for approval. As a result, restoration details could be submitted, in accordance with this condition which addresses any issues, including levels of contours arising out of the presence of the SAC."
Lord Justice Pitchford:
Mr Justice Lloyd Jones:
Order: Appeal dismissed