ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE STEWART QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE KITCHIN
|- and -
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
NORTHAMPTONSHIRE COUNTY COUNCIL
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Mr Rupert Warren (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent
The Second Respondent did not appear and was not represented.
Mr Robert McCracken QC and Ms Annabel Graham Paul (instructed by Dickinson Dees) appeared on behalf of the Third Respondent.
Crown Copyright ©
Lord Justice Laws:
"...such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development."
".description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from:
(a)the existence of the development..."
"(a) The application is for piecemeal development of a project that should be the subject of a comprehensive application.
(b) The Environmental Statement submitted with the application assessed the application proposal in isolation, whereas it is in reality part only of a more substantial development: the application cannot be determined without assessment of the cumulative effects of the totality of the project."
It will be apparent from this that the second respondents are, so to speak, in the same camp as the applicant.
"In the run-up to the inquiry it has emerged that the appellant also desires both to achieve an extension to the ENRMF site, and to achieve an extension to the life of the currently permitted site. Neither of these intentions forms part of the current appeal proposal. Northamptonshire County Council (NCC) and the appellant dispute the extent to which these intentions have previously been made evident to the Council and to the public...
In the Planning Inspectorate's view, the matters raised in relation to a future planning application for extension of the currently permitted site are not in themselves sufficient to support or to justify a requirement for further environmental information to be submitted under Regulation 19 of the [Regulations]."
"7.73. NCC was able to deal with the application that led to this appeal on the basis of the information that it had including the Environment Statement (ES). Augean advises that it only decided in May 2010, after the preparation of the ES, that it will seek to extend the use for hazardous waste until 2026 and, even now (at the time of the inquiry), states that it has not yet decided whether that application will include LLW. The current appeal is not part of a piecemeal proposal or an integral element of a comprehensive scheme; consequently, there would be no cumulative impacts of concern deriving from any future application that might include LLW. This appeal is for a stand-alone proposal which can be and is being considered on its own merits and, no doubt by reason of the precedent arguments outlined above, the appeal decision to be made could be a factor in any decision by Augean about a future application. It is not unusual for applications to be made to alter or extend the life of a temporary permission; at present, there are no details of any future proposals. I see no reason why the current appeal should not be dealt with on its own merits...
7.74. As to the ES, I find nothing to support NCC's claim that a permission in this case would frustrate the aims of the Environmental Impact Regulations and the Directive. As the current proposal is not part of a comprehensive scheme from which there would be a cumulative impact, I find nothing to support the claim that an assessment of cumulative impact would be deferred to be examined by an ES at the stage of the second application."
"In reaching this position the Secretary of State has taken into account the Environmental Statement (ES) which was submitted under the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 and the Inspector's comments at IR1.17 and IR7.72-7.75. Like the Inspector, the Secretary of State sees no reason why the current appeal should not be dealt with on its own merits (IR7.73) and that there is nothing to support the Council's claim that permission in this case would frustrate the aims of the Environmental Impact Regulations and the Environmental Impact Assessment Directive, or the claim that an assessment of cumulative impact would be deferred to be examined by an ES at the stage of the second application (IR7.74). In conclusion, the Secretary of State is content that the Environmental Statement complies with the above regulations and that sufficient information has been provided for him to assess the environmental impact of the appeal."
"7.69. Would a permission for this appeal create a precedent? To a significant degree, yes, if the new application is for or includes the landfilling of LLW. In general terms, the greater the similarity between proposals, the greater the potential precedent. I acknowledge that any new application would involve a change of circumstances from those pertaining now, in part from the passage of time or perhaps from proposals to construct new cells and develop the restoration proposals and landforms...
7.70. However, any new application would be on the same site now being considered or on an adjacent site and many other circumstances would remain the same or be little changed. And, as the new application is expected to be submitted in 2011, possibly shortly after the decision on this appeal, there will have been limited time for change with regard to matters such as policy or the development of competing facilities, which would affect the consideration of the proximity principle, BAT, need and so on. In the same way that appeal decisions elsewhere have been quoted here on the 'perception of harm' issue, I have no doubt that any conclusions that the SOS reaches on this appeal that are favourable to the appellant on actual harm, perception of harm, need, transport, highway safety, localism, economic effects and the like would be quoted by the appellant where relevant in support of a new application for the landfilling of LLW...
7.71. If this appeal is allowed, the chances of permission for a future proposal for the landfilling of LLW at or adjacent to the cells to be filled in this case would be enhanced. "
"30. The Secretary of State agrees with the Inspector's reasoning and conclusions regarding localism at IR7.67, and regarding whether permission for this appeal would create a precedent at IR7.69-7.70. He accepts that, in allowing this appeal, the chances of permission for a future proposal for a future landfilling of LLW at or adjacent to the cells to be filled in this case would be enhanced (IR7.71). However each application needs to be considered on its merits and having regard to the material circumstances at the time."
"The Directive requires that account be taken of the effects on the environment of the development in question at the earliest possible stage in the decision-making process."
See, for example, Barker v London Borough of Bromley  UKHL 52 per Lord Hope at paragraph 22 to which reference was made yesterday.
"In the present case, the permitted developments can go ahead irrespective of the future proposals. That was the finding of the Inspector, who said that this was a "stand-alone proposal". It is not in truth one integrated development such as the Carlisle Airport development in Brown; [That is Brown v Carlisle City Council  EWCA Civ 523] or the Madrid ring road project in the Ecologistas case; or the Mediterranean Corridor rail project in Commission v Spain..."
Thirdly, the Inspector stated (again IR at 7.73) that "at present, there are no details of any future proposals". This was challenged before the deputy judge: see paragraph 58 of the judgment. Clearly there was a degree of information about the overall intended scheme given in Dr Wilson's evidence to the enquiry. But, in my judgment, the Inspector was perfectly entitled to state that there was a want of detail.
The answer to the question -- what are the cumulative effects of a particular development -- will be a question of fact in each case."
It is clear also from the words of the regulation itself: "such information as it reasonably required" and "a description of the likely significant effects". These formulations import, as it seems to me, the application of a measured judgment to the evidence. This is not contradicted by the learning, of which Mr Drabble reminded us yesterday, which shows that the term "likely" in the regulation means "possible": see R(Bateman) v South Cambs DC & Ors  EWCA Civ 157.
"It was difficult to see how the commitment in the s.106 agreement to bring forward the "airport works" could, on the one hand have been adequate to ensure that the "development as a whole" could be regarded as policy compliant for the purposes of the Development Plan, but on the other hand, insufficient to make the airport works part of the cumulative effects of the development for the purposes of the EIA Regulations. Whilst submissions had been made that the airport works were 'inchoate', and so were not required to be assessed at that stage, the difficulty was that they had been sufficiently detailed for assessment of the economic and other advantages which would result. The grant of planning permission had been unlawful as there had been a failure to comply with reg.3(2) of the 1999 Regulations."
I agree with the observations of the deputy judge distinguishing Brown. At paragraphs 39 and 40 of his judgment (to which I have already referred) he said this:
"39. There is no doubt that the Brown decision (whilst clearly a scoping case) is distinguishable on its facts, since (paragraph 21) the s.106 Agreement ensured that the Freight Distribution Centre could not lawfully be developed in isolation; it could only be developed if its cumulative effects included the carrying out of the airport works. In other words, the airport works were integral to the permitted development; hence the question (paragraph 25), which had not been addressed, and to which there was only one rational response.
40. In the present case, the permitted developments can go ahead irrespective of the future proposals. That was the finding of the Inspector, who said that this was a "stand-alone proposal". It is not in truth one integrated development such as the Carlisle Airport development in Brown..."
Then the deputy judge referred to Ecologistas and Commission v Spain.
"There is nothing to support the Council's claim that permission in this case would frustrate the aims of the Environmental Impact Regulations and the Directive."
It is noteworthy that if the larger scheme is in due course applied for, it will as a whole (including that part of it which is in effect the present scheme) be the subject of an EIA; and thereby it seems to me the purpose of the Directive will be fulfilled. In Commission v Spain, the court said this (paragraph 47):
"...the Directive's fundamental objective is that, before consent is granted, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a mandatory assessment with regard to their effects."
That is precisely what will happen if the larger scheme is in due course applied for. The third respondent's case to the inquiry moreover included this passage accepted by the Inspector:
"2.5 The appeal proposal is not piecemeal development or a development which can only properly be considered as part of a larger whole, as alleged in NCC's additional reasons for refusal (a) and (b)... both of which have been rejected in the PINS ruling. It is not inevitably part of a more substantial development. If permitted, the development will be implemented regardless of the outcome of any further planning application. There is no cumulative or in-combination situation that would arise between the two proposals, even if any implementation of a subsequent permission occurred prior to the expiry in 2013 of the one now sought, which seems unlikely. In any event, the subsequent application would require assessment on the full effects of the extension to the landfill area and the extension of time for the already permitted area so that any cumulative effects would be considered then. At present, it is not possible to carry out that exercise."
Lord Justice Tomlinson:
Lord Justice Kitchin:
Order: Appeal dismissed