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
(HIS HONOUR JUDGE PELLING QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th February 2012

Lord Justice Longmore:

1. Mr Hargreaves is naturally concerned with a two-turbine wind farm, the tip heights of both turbines being as high as 125 metres, which developers propose to erect close to his home on the Fylde Peninsula in Lancashire on a site close to the Morecambe Bay Special Protection Area, the Lune Valley SSI, and the Wyre Estuary SSSI. Environmental assessments are required by the EIA Directive and the Habitats Directive if the project is likely to have significant effects on the environment, or on a site to which the Habitats Directive applies. The Secretary of State determined on 25 August 2010 that the project was not likely to have a significant effect on the environment and thus that no Environmental Impact Assessment was required.
2. Against that background, on 16 December 2010 Mr Pinner on behalf of the Secretary of State allowed an appeal against the refusal of planning permission for the development of the wind farm by the Wyre Borough Council. That was challenged pursuant to section 288 of the Town and Country Planning Act 1990 by Mr Hargreaves, but that challenge was rejected by HHJ Pelling QC. Permission to appeal had been refused on the papers by Sir Richard Buxton. Mr Hargreaves now seeks to renew the application for permission.
3. There are three grounds which are sought to be appealed, and Mr McCracken QC has sensibly concentrated on the main ground this morning in the short time to which he is entitled for making his oral application. That main question is whether the decision maker in relation to what is called the "screening decision" of 25 August 2010 that no EIA was needed was entitled to take into account remedial or mitigatory measures proposed to soften any environmental impact: here, the fact that pink-footed geese would, to some extent, be deprived of their current feeding grounds, but that alternative feeding grounds can be provided which may themselves have to be protected by fences from dogs being exercised by their owners, or whether such measures should only be taken into account in the course of conducting an Environmental Impact Assessment which must itself take place.
4. There have been a number of decisions which have discussed this matter. In particular, Mr McCracken has referred me to the decision of Sullivan J in Lebus v South Cambridgeshire DC [2002] EWHC 2009 (Admin), in paragraph 46 of which he says:

"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."

5. However, since then the matter has been considered by the Court of Appeal in a case called R (Catt) v Brighton Hove Council [2007] EWCA Civ 298. That decided that taking remedial measures into account when coming to a screening decision, and concluding that no EIA was needed, was not only not unlawful, but would be to ignore the actual characteristics of many projects such as the present. One can see that, for example, from paragraph 37 of the decision. That should be contrasted, said this court, with particular cases where the uncertainties relating to potential ameliorative measures and conditions, as for example in the case of land infill sites which might be polluted, was such that their favourable implementation could not be assumed. Here, by contrast, the provision of alternative feeding grounds protected from dogs can be easily evaluated, especially since in this case both Natural England and the RSPB have expressed themselves entirely satisfied with the proposed measures.
6. Mr Catt returned to the courts, when further temporary development permission was given for the Brighton and Hove Stadium, and challenged the next and later planning permission on exactly the same grounds; the matter then came back before the Court of Appeal on a request for a reference to the European Court of Justice on this very point, see [2009] EWCA Civ 1417. That court, Pill and Richards LJJ, declined to make a reference on that point, despite the fact that Mr Hargreaves' and Mr Catt's solicitor's correspondence with the Commission had been put before that court. What Richards LJ said about that is at paragraphs 14 and 15:

"14. The Commission's letter refers to the guidance being formulated by the UK government. Mr Upton has submitted that that guidance, too, favours the applicant's case. However, all we have been shown is a consultation paper of June 2006 on amended guidelines for Environmental Impact Assessments. That is no more than a consultation paper. It was issued before the decisions in Catt 1 and Dicken. In itself, as it seems to me, it does not take the matter any further. We are told that there has been no further publication by the UK authorities by way of guidelines relevant to the issues in this case.

15. For my part, I am not persuaded that the Commission's correspondence justifies the conclusion that the decision reached in Catt 1 was or may have been based on an erroneous interpretation of the regulations implementing the relevant directive. In my judgment the material relied on does not warrant a re-opening of the issue decided in Catt 1 whether by way of an immediate reference to the ECJ or through the grant of permission to enable the issue to be argued further in fresh judicial review proceedings. In the circumstances I can see no justification for adopting any course other than to apply the decision in Catt 1 on the basis of which the first and main part of the claimant's case must fail."

The learned Lord Justice then says that he has given anxious consideration to the issues raised, and the earlier cases, but nevertheless adheres to that conclusion. On the face of it, that decision binds me.

7. Mr McCracken submits, however, (a) that the matter has been taken further by further correspondence with the Commission, and (b) that on matters of European law Catt (no 2) cannot be binding unless I myself form the view that the views of Sullivan J are not tenable views. That does not seem to me to be quite right. It is, at least, very relevant for me to have regard to the fact that this court has already been asked to make a reference to the ECJ, and has declined to do so.
8. As far as the further correspondence with the Commission is concerned, Mr Hargreaves' solicitor, Mr Richard Buxton, has returned to the charge, as I may put it, and the present state of play is set out in a letter of 8 February 2012, which Mr McCracken submits is a clear endorsement of the views of Sullivan J. It does indeed refer to the Lebus case. It makes no reference to either Catt 1 or Catt 2, and says that they themselves will not take any further action pending the results of this application. The seminal paragraph of the letter, as it seems to me, is paragraph 4, which takes a cautious line and says:

"If however, the developer, in recognising a potential impact, proposes for example to translocate protected species found on the site, or to construct sound barriers around a potentially noisy development, then these are matters which are better dealt with within the EIA process itself if [and I emphasise the word "if"] it is concluded that the project without these measures would be deemed likely to have significant environment effects."

9. The screening decision decider in this case did decide that there were no significant effects, and the fact that he took into account elementary mitigating measures does not seem to me to in any way invalidate the decision. Despite the fact that Mr McCracken presses me with the CILFIT case [1982] ECR 3415 and also goes so far as to say that, if I turn his application down, as the Court of Appeal turned down the Catt application in number 2, there will inevitably be proceedings against the United Kingdom for infringement, it does not seem to me that this court could conceivably reverse the decision of HHJ Pelling QC on this point, and I would not grant permission to appeal.
10. There are two other matters which I will refer to briefly, because Mr McCracken did not emphasise them in oral argument, but he also seeks permission to appeal on the basis that the judge was wrong to say that it was only if a rational inspector thought that there was a realistic prospect of the Secretary of State changing his mind that he should of his own motion refer back to the Secretary of State the question of whether there were significant environmental impacts requiring an EIA. That, of course, presupposes that the Inspector ought to have so considered and that in so considering he did not refer back. In my judgment, neither of those suggestions can be made good.
11. Thirdly, Mr McCracken would seek permission to appeal on the basis that the judge misinterpreted the word "likely" as used in the EIA directive and the Habitats Directive as interpreted by the case of Waddenzee [2005] Env LR 14, paragraph 44, but "likely" is an ordinary word and it does not seem to me that the judge made any error in that regard, nor indeed did the Inspector.
12. I have every sympathy for Mr Hargreaves. It does seem that this is a development about which any person in the area might wish to complain, but I fear that he has no grounds in law for pursuing this matter further, and I will refuse this application.

Order: Application refused.