ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON. MR. JUSTICE LLOYD JONES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| The Queen on the application of Loader
|- and -
|Secretary of State for Communities and Local Goverment & Ors
Mr James Maurici (instructed by Treasury Solicitor) for the Respondent
Hearing date : 23 May 2012
Crown Copyright ©
Lord Justice Pill :
"The development proposed, namely re-development of the site to form 41 sheltered apartments for the elderly, car parking, landscape and access and new outdoor bowls green, indoor rink, club facilities and car parking, falls within the description at paragraph 10(b) of Schedule 2 to the 1999 Regulations, and exceeds the threshold in column 2 of the table in that Schedule, but in the opinion of the Secretary of State, having taken into account the criteria in Schedule 3 to the 1999 Regulations, would not be likely to have significant effect on the environment by virtue of facts such as its nature, size or location. Accordingly, in exercise of the powers conferred on her by reg.s 9(1) and 6(4) of the 1999 Regulations, the Secretary of State hereby directs that the development for which planning permission is sought by application reference number RR/2006/2226/P is not EIA development."
"The appeal is for a re-development to form 41 sheltered apartments for the elderly, car parking, landscape and access and new outdoor bowls green, indoor rink, club facilities and car parking. The development falls under the description at paragraph 10(b) of schedule 2 to the 1999 Regulations – Urban development projects. This includes the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas.
The site is not within an approved Green Belt or AONB, nor is it in or adjacent to or likely to affect an SSSI, and no protected species are affected, however as the site area is 0.7 hectares the development exceeds the applicable thresholds and criteria guidance given in column 2 of the table in that schedule of being over 0.5ha, and so requires EIA screening.
The guidance given in the indicative criteria/thresholds in schedule 3 to the 1999 Regulations, is that in addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions, and noise. EIA is unlikely to be required for the development of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination.
Developments proposed for sites which have not previously been intensively developed are more likely to require EIA if;
The site of the scheme is more than 5 hectares; or
They would provide a total of more than 10,000m2 of new commercial floor space; or
The development would have significant urbanising effects in a previously non-urbanised area. (e.g. a new development of more than 1,000 dwellings).
The current use of the site is as a bowls club and so the land has already been developed, and use as a bowling club already established.
The site is 0.7 hectares and well under the guidance given of EIA being required for land which has not previously been intensively developed (over 5ha). The residential part of the development is for 41 apartments. This again is below the guidelines given (a new development of more than 1,000 dwellings). The land is not in a sensitive area, nor does it affect a European site as given within the meaning of reg. 10 of the Conservation (Natural Habitats etc.) Regulations. So any impacts would be of a local nature only.
In conclusion this re-development would not have significant effects on the environment considering the size, nature and location of the development."
The Environmental Impact Assessment framework
"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question."
"Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay."
"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Those projects are defined in Article 4."
"1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination;
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.
4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public."
"Urban development projects, including the construction of shopping centres and car parks."
It is accepted that the present planning proposal comes within that definition.
"The potential significant effects of projects must be considered in relation to criteria set out in points 1 and 2 above, and having regard in particular to:
- the extent of the impact (geographical area and size of the affected population);
- the transfrontier nature of the impact;
- the magnitude and complexity of the impact;
- the probability of the impact;
- the duration, frequency and reversibility of the impact."
"When setting such thresholds or criteria or examining projects on a case-by-case basis, for the purpose of determining which projects should be subject to assessment on the basis of their significant environmental effects, Member States should take account of the relevant selection criteria set out in this Directive. In accordance with the subsidiarity principle, the Member States are in the best position to apply those criteria in specific instances."
"(a) Schedule 1 development; or
(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
Schedules 1 and 2 in substance reproduce Annexes I and II of the Directive. The development proposed in this case is schedule 2 development as an urban development project, as stated in the Inspectorate's reasons for decision.
"33. . . . In the light of these [the selection criteria], 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."
"A18. In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination (paragraph 41).
A19. Development proposed for sites which have not previously been intensively developed are more likely to require EIA if:
- the site area of the scheme is more than 5 hectares; or
- it would provide a total of more than 10,000 m2 of new commercial floorspace; or
- the development would have significant urbanising effects in a previously non, urbanised area (e.g. a new development of more than 1,000 dwellings)."
The Circular does recognise that "the more environmentally sensitive the location, the lower will be the threshold at which significant effects will be likely". The information to be included in an Environmental Statement is described in articles 5 to 10 of the Directive and schedule 4 of the Regulations.
"To help EIA participants apply [Annex III] criteria in case-by-case screening, two checklists have been prepared to support and help the process of deciding whether or not a project is likely to have significant effects on the environment."
In making its screening decision, the Inspectorate used the relevant checklist. In relation to the checklists, the Guidance provides, at B3.4.1:
"These are intended to be of assistance where there is no Member State guidance or where the need for EIA is still not clear. They are designed to help answer the question "Is this project likely to have significant effects on the environment?"
It is important to emphasise that use of these tools is not intended to require special studies. The tools are intended to be used quickly by people with the qualifications and experience typically found in competent authorities, and using the information which is readily available about the project and its environment."
"The Screening Checklist provides a list of questions to help identify where there is the potential for interactions between a project and its environment. This checklist is designed to help decide whether those interactions - effects - are likely to be significant.
Those responsible for making screening decisions often find difficulties in defining what is "significant". A useful simple check is to ask whether the effect is one that ought to be considered and to have an influence on the development consent decision. At the early stage of Screening there is likely to be little information on which to base this decision but the following list of questions may be helpful."
Submissions and discussion
"In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC, and by reference to which the Habitats Directive must be interpreted, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned (see, by analogy, inter alia Case C-180/96 United Kingdom v Commission  ECR 1-2265, paragraphs 50, 105 and 107). Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised, and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and Article 2(1) thereof, its main aim, namely, ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora."
"In my view something more than a bare possibility is probably required, though any serious possibility would suffice."
"'likely' connotes real risk and not probability."
"Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion."
"But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie). The effect on the environment must be "significant". Significance in this context is not a hard-edged concept: as I have said, the assessment of what is significant involves the exercise of judgment."
Carnwath LJ stated, at paragraph 61:
"Furthermore, the word 'significant' does not lay down a precise legal test. It requires the exercise of judgment, on technical or other planning grounds, and consistency in the exercise of that judgment in different cases. That is a function for which the courts are ill-equipped but which is well-suited to the familiar role of planning authorities, under the guidance of the Secretary of State."
". . . we are dealing with what is quintessentially a matter of judgment."
Laws LJ rejected a submission, based on the judgment of Judge Thornton QC in R (BugLife) v Medway Council and Ors  EWHC Admin 746 that a proportionate standard should be applied. Laws LJ stated, at paragraph 40:
"For my part, I do not see that there is any true question of proportionality arising in the present case. We are not concerned with the exercise of a discretion and therefore we are not concerned with assessing whether a response to a particular aim is or is not proportionate. We are concerned with a fact-finding exercise."
"For my own part, I do not think that one should attempt to place too rigid an interpretation on the word "significant" in this context, but the main difficulty I have with this part of Mr. Drabble's argument is that, if his submission[s] are both correct, an EIA would be required in virtually all cases in which a development might possibly have some effect on the environment, which does not seem to me to be what the directive intended. However, for reasons which will become apparent it is not necessary to reach a final decision on either of these questions in the present case. I would therefore prefer not to place a gloss of my own on the words used in the Regulations and leave it to planning authorities to decide on a case by case basis whether the development under consideration is likely to have a significant effect on the environment, as that expression is to be understood in the light of the developing case law of the European Court."
"In the present case, it is clear that the Commission did not satisfy the burden of proof placed upon it. It cannot merely rely on presumptions that large-scale projects are automatically likely to have significant effects on the environment without establishing, on the basis of at least some specific evidence, that the competent authorities made a manifest error of assessment."
"The underlying principle to be derived both from the Waddenzee judgment and the domestic authorities referred to above (Gillespie and Catt) [cited below] is that, as with the EIA Directive, the provisions in the Habitats Directive are intended to be an aid to effective environmental decision making, not a legal obstacle course."
". . . the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."
(See also R (Catt v Brighton and Hove CC  EWCA Civ 298) paragraphs 33 to 37. "An assessment, which almost invariably involves an element of prediction, is required as to the effect of the particular proposal on the environment and a planning judgment made" (paragraph 34).)
"Is this project likely to have significant effects on the environment?"
That is clear from European and national authority, including the Commission Guidance at B3.4.1. The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. Only if there is a manifest error of assessment will the ECJ intervene (Commission v UK).
The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker.
Lord Justice Toulson :
Lord Justice Sullivan :