England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HHJ MILWYN JARMAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th October 2012

Lord Justice Sullivan:

1. In these two applications for judicial review the claimant seeks quashing orders in respect of decisions by the Carmarthenshire County Council ("the County Council") to grant two reserved matters approvals, one on 27 January 2011 in respect of 355 dwellings at Stradley Park in Llanelli and the other on 7 October 2010 in respect of 205 dwellings at Machynys West in Llanelli.
2. The background to the claims for judicial review is set out in some detail in the judgment of HHJ  Milwyn Jarman QC, sitting as a Deputy High Court judge, which is reported at [2012] EWHC 568 (Admin). Before the judge the claimant challenged the approvals of reserved matters on four grounds. The judge refused to grant permission to apply for judicial review on all of the grounds.
3. On 12 July 2012 Elias LJ granted permission to apply for judicial review on one ground only, ground 3 before the judge. The claimant was ordered to re-amend and fully particularise ground 3 and the substantive judicial reviews were retained in this court.
4. The claimant is a licensed cocklepicker and is chair of the Llanelli Cocklepickers Association. The Association is very concerned about cockle mortality in Carmarthen Bay. The Carmarthen Bay and Estuaries European Marine Site (referred to in the various documents as "CBEEMS") comprises the Carmarthen Bay and Estuary Special Area of Conservation, Carmarthen Bay Special Protection Area and the Burry Inlet Special Protection Area and Ramsar Site. Often these sites are collectively referred to as the "European Site".
5. The sewerage system in Llanelli discharges eventually into water courses or the estuary which leads into the bay. The claimants are concerned that the water quality in the bay would be adversely affected by the drainage from the two developments, for which reserved matters approval was granted by the County Council.
6. The judgment sets out both the legal framework under the Habitats Directive and the chronology of the two approvals of reserved matters in some detail. For present purposes it is unnecessary to rehearse that detail. It is common ground that, in respect of each of the two developments, an appropriate assessment (AA) had to be carried out in accordance with the requirements of the Habitats Directive before the approval of reserved matters could lawfully be granted. It is common ground that in each case an appropriate assessment was carried out and published before reserved matters approval was granted. The appropriate assessment for Stradley Park was published on 24 January 2011 and the appropriate assessment for Machynys West was published in September 2010.
7. So far as relevant for present purposes, the latter appropriate assessment said in paragraph 8.6:

"EAW [the Environment Agency for Wales] are undertaking stage 4 of the Review of Consents [RoC] under the Habitats Directive -- for the CBEEMS. This would inform with more certainty any need for further investments by DCWW [Welsh Water]. Any such need would have to be considered in line with current investment commitments"

8. The conclusions of the appropriate assessment are contained in Part 9 of the assessment. The principal conclusion was in paragraph 9.1:

"The proposed development will not have a significant effect on the Carmarthen Bay and Estuaries European Marine Site … as the proposal is not likely to undermine the areas conservation objectives"

9. Paragraph 9.3 referred to recent improvements at Northumberland and Llanelli Waste Water Treatment Works and said that they provide:

"...sufficient storage. Furthermore the proposal will ensure all surface water is separated from the foul system. The authority will monitor and if necessary use planning enforcement powers to ensure compliance by the developer of the planning condition requiring separate systems of foul and surface water drainage."

10. In paragraph 9.4 the assessment referred to improvements that had been provided at the overflow at Llanelli Waste Water Treatment Works and continued:

"There is already UV disinfection on the continuous effluent discharge from the works. Plant has also been introduced at Llannant Waste Water Treatment Works, designed to remove up to 10 kgs total phosphorous per day, corresponding to an equivalent growth in population of 6250. This application will not exceed the 2000 unit limit that has been set and there will be a net decrease in phosphorous loading of 29% per dwelling unit equivalent and therefore there will be no adverse effect in relation to increased phosphorous loading. The authority will monitor and if necessary use planning enforcement powers to ensure compliance by the developer of the planning condition requiring the phasing of the development."

11. In paragraph 9.6 the assessment said:

"The Authority is fully satisfied that the above development alone and/or in combination with other developments would have no adverse effect on site integrity. Maintaining the registers and monitoring regimes to measure those surface water removal and nutrient levels will ensure continued betterment."

The Stradley Park assessment was in very similar terms. It is not for this court to review the merits of the appropriate assessments. This judicial review is simply concerned with whether the assessments were lawfully carried out.

12. In summary, Mr Goodman submits on behalf of the claimant that the assessments were not lawful because the county council: a) failed to have regard to a material consideration, namely the views of the Environment Agency for Wales, in particular as those views were expressed in its review of consents; and b) had regard to an irrelevant consideration, namely certain "infrastructure works", which were relied upon as mitigating the impact of the drainage from the two developments.

13. The bay was designated as a European site as an Estuary and Inter-tidal Habitat and a Habitat for Rare Birds on 1 April 2005. Concerns had long been raised about water quality in the bay. In May 2009 a report by Metoc Plc, which had been commissioned by Welsh Water, was published. That was followed in October 2009 by an area-wide environmental impact statement, which was commissioned by a consortium of developers. Against the background of the studies all of the relevant statutory bodies, that is to say the Environment Agency for Wales, the Countryside Council for Wales (CCW), the County Council, Cardiff City Council and Welsh Water, reached a consensus in a non-binding Memorandum of Understanding in February 2010.

3 of the Memorandum set out the parties' intentions in entering into it :

"3.1 The Parties agree to work together to ensure that any development will only proceed where it is in compliance with the Habitats Directive and Regulations.

3.2 In particular the Parties agree that the impact of sewage discharge flows and loading associated with development on the CBEEMS will be dealt with in accordance with each Party's respective obligations under the Habitats Regulations and in accordance with the conservation objectives for the site. "

14.

4 of the Memorandum dealt with further scientific evaluation. Having referred to the Metoc study, paragraph 4.2 of the Memorandum said:

"EAW are undertaking stage 4 of the review of consents... -- under the Habitats Directive -- for the CBEEMS, to be completed as soon as possible. This will inform with more certainty any need for further investment by [Welsh Water]. Any such need will have to be considered in line with current investment commitments already included in the overall PR09 proposals and will be subject to change protocol."

15. Par 6 of the memorandum is entitled "Freeing Up Capacity for Development". Paragraph 6.5 says this:

"[The County Council] and [City Council] have agreed as an interim measure to fund [Welsh Water] to install the best practical means of nutrient removal, specifically to reduce phosphates at Llanant Waste Water Treatment Works by 31st March 2010. This measure will free up capacity for development and achieve significant reductions in nutrient loadings whilst providing capacity for the equivalent of more than 2000 new domestic property developments to proceed. [Welsh Water] will continue to review its waste water treatment processes to implement longer term sustainable methods of phosphate removal at both Llanelli and Gowerton Waste Water Treatment Works. This process will be subject to the outcome of a consent review by [the Environment Agency for Wales]."

16. It is common ground that the dwellings in the two sites that are in issue in these proceedings are included in the figure of 2000 new houses referred to in the Memorandum of Understanding.
17. The Agency's Review of Consents was published the following month, March 2010. The purpose of the review is explained in one of the introductory paragraphs:

"The purpose of Stage 4, Options Appraisal, of the Habitats Directive Review of Consents Process is to ensure that Agency permissions, plans or projects, which could not be shown to have no adverse impact on site integrity in Stage 3, do not cause or could not potentially cause or contribute to adverse effect on site integrity, alone and/or in combination (subject to consideration of alternatives and imperative reasons of overriding public interest). The outcome of the stage 4 options appraisal is a decision as to whether a conclusion of their adverse effect on integrity could be reached through modifications, restrictions or revocations of permissions, plans or projects … and if so what those modifications or restrictions need to be."

18. Paragraph 1.6 of the Review of Consents identified the environmental outcome:

"The Environmental Outcome (EO) identified is

To ensure that the Carmarthen Bay and Estuaries EMS is not at risk of eutrophication through elevated nutrient levels; to achieve the long-term objective that the Carmarthen Bay and Estuaries EMS will be in mesotrophic status in line with the site's conservation objectives.

With current information, it is unlikely that any permit option presented for Stage 4 discharges via RoC will reliably achieve the identified EO for Carmarthen Bay and Estuaries EMS, in terms of it attaining the required nutrient status. This is because the total phosphorous load contributed by the discharges, although significant in combination (and in some cases, alone) is compounded by diffuse inputs throughout the catchment, which are beyond the scope of this review.

Consequently, a Discharge Objective considered appropriate to the remaining permits under consideration is as follows:

Reduce the contribution of total phosphorous from discharges to an agreed proportion of the total loading."

19. The options identified for achieving that discharge objective are then set out: revoking consents, affirming all consents, modifying all consents or selective modification of consents. The preferred option was the modification of the consents of the most significant four continuous discharges. The conclusions of the review were :

"This preferred modification option is judged as high in risk in respect of meeting the EO, due to the widespread catchment issues associated with non-point sources of phosphorous. Nevertheless, via implementation of option 4, the Discharge Objective is met -- a tangible contribution towards achieving the overall environmental outcome for the designation. This will show a conclusion of no adverse effect on integrity of site features to be reached in respect of Environment Agency permissions for water quality.

It is anticipated that in order to fully attain the required water quality improvement within the Carmarthen Bay and the Estuaries EMS Site, further additional actions elsewhere in the catchment outside the scope of the Review of Consents process, will be required. Evidence considered suggests inactions focusing on the Tywi catchment, which is shown to be impacted by far the greater proportion of non-point source phosphorous, is likely to yield the most fruitful results in terms of lowering TP within the sections of the site most at risk of eutrophication."

20. The defendant and the interested parties do not contend that the Agency's views or the Agency's Review of Consents were not capable of being relevant considerations for the purposes of the appropriate assessment. Plainly the Agency's views, whether or not they were expressed via the Review of Consents, were capable of being relevant. What the defendant and the interested party say is that they were well aware of the Agency's views because those views were reflected in the Memorandum of Understanding, and the Agency's Review of Consents added nothing of substance to the Memorandum for the purposes of the appropriate assessments, and it did not affect in any way the consensus which had been reached in the Memorandum of Understanding. It seems to me that whether that is right or wrong is a factual question which must be determined on the evidence before the court.
21. Looking first at the Agency's position, it is not a party to these proceedings. It has not challenged the lawfulness of the approvals of reserved matters. It has written a letter dated 5 September 2012 to the claimant's solicitors in which it has explained its role in the planning process.
22. For the purposes of this judicial review claim, the letter is significant in my view for what it does not say. It does not suggest that, for the purposes of the appropriate assessments, its Review of Consents added anything material to the consensus which had been reached in the Memorandum of Understanding to which it was a party. Nor does it suggest that the appropriate assessments failed to consider any material factor which it might have wished to have been considered from its point of view, nor did it suggest that it has any objection to the approvals of reserved matters. There is therefore an air of artificiality about the claim, namely that the county council failed to consult the Agency and obtain its views. Mr Goodman emphasised the final sentence of paragraph 6.5 of the Memorandum, which said that the proposal that Welsh Water implement longer term sustainable methods of achieving phosphate removal at both Llanelli and Gowerton Waste Water Treatment Works would be subject to the outcome of a consent review by the Agency.
23. Did the Review of Consents affect the consensus that had been reached in the Memorandum of Understanding? The evidence on this issue is all one way. Mr Williams, who is the district team leader for CCW, says in paragraph 5 of his witness statement:

"The MOU of February 2010 agreed that up to 2000 houses could be built in the Llanelli and Gowerton Waste Water Treatment...catchment areas of the [County Council] and the [City Council], which included the Stradley and Machynys development. The MOU was subject to revision and was indeed revised in September 2011 after discussion between all parties. However, nothing in the revised document altered in any way from the previous consensus concerning the acceptability of these developments. As stated above, nothing in the RoC affects that consensus and nothing which [the County Council] or [Countryside Commission for Wale] should have regarded as material to the conclusions of the [appropriate assessments]."

24. Ms Rendle, an ecologist with the county council, was responsible for the preparation of the appropriate assessments. She says in paragraph 5 of her witness statement:

"So far as the ROC is concerned, I mentioned this only at paragraph 8.6 in each [assessment]. I was fully aware of the work being progressed by the EAW, which resulted in the completion of the ROC in March 2010. Indeed I had been present at meetings with EAW and CCW during this period which concerned environmental and ecological matters relating to the CBEEMS. I was fully aware of the progress of the ROC and the concerns of EAW. I mentioned the ROC only to state the factual position as set out in the MOU of February 2010. I have never considered or heard it suggested that the paragraph in the MOU indicated any view or suspicion that the ROC might discover some factor which would undermine the MOU. It simply sets out the EAW's duty and intention. As I have said, I knew of the ROC but I didn't read it in its entirety. Had there been something during its preparation which affected the MOU or the work I was doing or indeed planning in the area generally I would have expected the EAW to have brought that to [the County Council's] attention directly or via its own responses to planning applications, or via the [Countryside Commission for Wales]. No such concern was expressed. I did not therefore consider that the ROC contained anything relevant to the issues I was dealing with. Nor do I now consider that the ROC contains anything which undermines the MOU or the conclusions or reasoning of the [appropriate assessments]."

25. Mr Wilkinson is a chartered engineer and a director of Water and Transport and Development Limited. He has been involved in the engineering aspects of the sites for very many years and his firm was responsible for the environmental impact assessment. He says in his witness statement:

"6.2.2 It appears clear that the author of the [appropriate assessments] dealt with the matter of consents and water quality by reference to the Area-wide [environmental statement] in the MoU. It does not mean however that no attention was given to the RoC. The RoC had been published but there were no issues raised in the RoC which would have affected the granting of [reserved matters approvals] for the developments in question. In this case the matter of water quality in compliance with the Directives was given due consideration."

In paragraph 6.5.4 Mr Wilkinson returns to this point and says this:

"The [appropriate assessments] could have been more specific about the RoC but the important thing is that they were specific about the measures agreed in the Area-wide [environmental statement] and MoU and also in other support documents such as the Metoc Report. For the Claimant to contend that inadequate consideration has been given to the significant scientific information available and the scientific expertise of CCW, EAW and [Welsh Water] is incorrect and unsubstantiated by expert evidence. For the reasons which I have explained, the [review of consents]/[Environment Authority for Wales's] views were not capable of bringing into question whether enough was being done in relation to the [appropriate assessment] for the two development projects the subject of this litigation."

26. There was no application to cross-examine any of these witnesses. Mr Goodman submitted that we should place little weight on this evidence because it post-dates the decisions in question, but the short answer to his submission is that there is simply no evidence to the contrary. Mr Goodman made lengthy written and oral submissions about the significance of the review of consents, but those submissions are not evidence.
27. The conclusion that nothing in the review of consents affected the consensus that had been reached in the previous month in the Memorandum of Understanding is not in the least surprising. Although the Review of Consents was published in March 2010, the review process was a lengthy one, and as a matter of common sense the information emerging from that review process would have been bound to have informed the Agency's approach to the Memorandum of Understanding. Moreover the memorandum was reviewed by the statutory bodies who were parties to it and a revised Memorandum of Understanding was published in September 2011. Far from casting any doubt on the issue that is critical for the purpose of the present proceedings, namely whether there was still scope for the 2000 dwellings referred to in the 2010 Memorandum, the revised Memorandum of Understanding reaffirmed that position. Paragraph 4.1, when describing the current position, said this:

"4.1 Conservation. The [County Council] and the [City Council] have contributed funding for the installation of a treatment process to remove phosphorous at the Llannant Treatment Works. This is to ensure that any developments approved for planning, on either side of the estuary, will not increase the phosphorous (nutrients) from the [Welsh Water] operated treatment works entering CBEEMS. The system is intended to chemically remove phosphorous from the effluent that passes through this works, equivalent to the loading from 2000 new households. This should ensure no further deterioration in water quality in the short term as phosphorous entering the estuary from this works is not increased. This means that up to 2,000 dwellings or other equivalent developments can be approved between the two Planning Authorities while maintaining the current nutrient status of the CBEEMS and preventing any further deterioration. The planning registers held by the LPA's record the number of residential units approved since March 2010 on which the 2000 figure is based. The registers record the number of units approved, commenced and completed and the relevant surface water compensatory reductions."

28. When looking at future commitments in

5 of the revised Memorandum of Understanding, paragraph 5.1 says this:

"5.1 Conservation -- The review is of consents undertaken for both the Llanelli and Gowerton works, to require compliance with the Habitats Regulations, have set stricter targets for effluent quality to be achieved by 2015. The Welsh National Environment Programme now includes schemes to install phosphorous stripping at the Pontyberem, Parc Y Splotts, Llanelli and Gowerton Treatment Works by 2015. Development will not be allowed to drive these phosphorous levels back up and so further phosphorous removal schemes will need to be put forward to neutralise the impacts of development once the 2000 dwellings mitigated for at Llanant are approved and 'used up'.

Further studies are ongoing to determine if the Loughor Estuary should be designated as a Polluted Water (eutrophic) under the Nitrate Directive. Should this follow, then a catchment area could become a Nitrate Vulnerable Zone and all farms in this area may be subject to new regulatory controls, for example restrictions on the use of fertilizers. Carmarthen Bay and its estuaries (including the rest of the Burry inlet) are also under review as both a candidate Polluted Water (Eutrophic) and Sensitive Area (Eutrophic)."

29. Appendix 4 gave guidance on the phosphate removal regime for Swansea and Llanelli and said:

"Carmarthenshire County Council and City of Swansea Council have funded [Welsh Water] to undertake phosphate stripping at the Llannant STW. This interim compensation measure is intended to offset any new nutrient loading to the Burry inlet resulting from new development granted permission after 1^st April 2010. This additional dosing will allow development capacity within the Burry Inlet area to develop 2000 houses without impacting the current nutrient status in the Burry inlet. Current building completions are in the range of 200-300 in total per year for both local authority areas …

All partners in the Memorandum of Understanding need to have 6 monthly updates on the current status and implications of the above phosphate removal measures at the Llanant [Sewage Treatment Works]. The registers maintained by the County Council, City Council and Welsh Water will be critical to this."

30. In the light of all this material, there is in my judgment no substance whatsoever in the first limb of the claimant's challenge to the appropriate assessments. I turn therefore to the second limb of the challenge.
31. When he was asked what the "infrastructure works" were which the county council should not have regarded as being capable of mitigating the effects of the two schemes, Mr Goodman confirmed Mr Wilkinson's understanding in his witness statement that those works comprised what were called the "AMP 4 Works", which had been agreed between the Environment Agency for Wales and Welsh Water and were due to be completed in March 2010. Mr Goodman accepted that these works had in fact been completed in or about March 2010. It is plain, therefore, that the infrastructure works which were taken into consideration in the appropriate assessments were works which were in operation on the ground when the appropriate assessments were published. I confess that in these circumstances I found it very difficult to see how the county council could have failed to take those infrastructure works into account. It would have been wholly unrealistic not to do so. As I understood Mr Goodman's submission, much turned on the fact that the bay had not yet attained the required nutrient status. It was still eutrophic rather than mesotrophic, and the Review of Consents had recognised that, to fully attain the required water quality of the bay, further actions, largely actions to deal with the effects of agricultural run-off, would be required. Until those works were done, the integrity of this European site, which was the environmental outcome, could not be achieved.

32. Mr Goodman submitted that one had to consider the impact of the projects, that is the two housing developments, and in doing that the county council could not, as he put it, "trade off" the beneficial effects of the AMP 4 works because they were not

of the projects in question. One had to consider the adverse impacts of the projects themselves without any trade-off.
33. When considering the question of cumulative impact of these projects when combined with others, he submitted that the County Council could not "pick off" some beneficial works and then ignore the wider picture: that is to say that the integrity on the site had not been achieved and more works were needed in order to achieve this. I find the justification for this submission, bearing in mind its practical implications, very difficult to understand. It seems to me that it would make it much more difficult if not impossible to release the 2000 new dwellings, which all of the relevant statutory authorities are agreed can be accommodated without having an adverse effect on the bay because of the infrastructure works that had been undertaken by Welsh Water, until such time as the water quality of the bay has been improved by further measures to deal with other sources of pollution such as agricultural run-off, because site integrity will not have been achieved until these further measures have been implemented.
34. I do not accept that the Directive compels one to reach such an unrealistic conclusion. In effect, it treats a failure to contribute to a wider improvement in environmental quality as an adverse impact on environmental quality. Article 64 of the Directive is concerned with the consideration on review of existing consents and not with the granting of new consents, but Article 64(3) indicates the common sense approach:

" The decision, or the consent, permission or other authorisation, may be affirmed if it appears to the competent authority reviewing it that other action taken or to be taken by them, or by another authority, will secure that the plan or project does not adversely affect the integrity of the site."

35. If one was looking at this matter through the prism of that paragraph, we are here dealing with action that has been taken and not action to be taken by another authority. The infrastructure works provided by Welsh Water were in operation. All the relevant statutory authorities were agreed that, given the existence of those works, the two housing developments would not adversely affect the current nutrient status of the bay. The fact that it is an objective to improve that status and these two developments will not contribute to that improvement does not mean that they will have an adverse effect on the integrity of this European site.
36. For these reasons I would dismiss these two claims for judicial review.

Lord Justice Patten:

37. I agree

Sir David Keene:

38. I also agree.

Order: Appeal dismissed