ON APPEAL FROM THE HIGH COURT OF JUSTICE
His Honour Judge Allan Gore QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ASPLIN
LORD JUSTICE COULSON
| David Gathercole
|- and -
|Suffolk County Council
Richard Ground QC and Jack Parker (instructed by Suffolk Legal Services) for the Respondent
Hearing date: 23rd July 2020
Crown Copyright ©
LORD JUSTICE COULSON:
2. THE FACTUAL BACKGROUND
(a) 81 dwellings at Rabbit Hill Covert;
(b) 140 dwellings west of Eriswell Road;
(c) 67 dwellings at Briscoe Way; and
(d) 375 dwellings at Station Road.
Many of these proposed developments are at the north end of Lakenheath village, which is also the location of the proposed new school on Station Road.
(a) Site 1: Lakenheath North: This was the most northerly of all the sites considered. It was even further north than the proposed site, but it was not accessible from Station Road. In relation to this alternative, the ES said at paragraph 2.2.9:
"There was concern that this site was to some extent isolated and a better option would be to relocate the school to the southern part of the site closer to the highway and Lakenheath (as shown in this planning application) to address the accessibility issues."
In other words, the proposed site for the school was a little to the south of Site 1, with direct access onto Station Road.
(b) Site 2: Middle Covert: At paragraph 2.2.10, the ES said:
"2.2.10 The site is currently woodland and to develop this site would have an ecological and visual impact having to cut down a considerable number of trees. A number of trees are subject to TPOs and the site is considered to be a wildlife corridor. There would be no additional land if the school had to expand in the future to accommodate more than 420 places."
(c) Site 3: Maids Cross Way: The ES noted at paragraph 2.2.13 that acquisition of this site "would be a cost to the applicant". It went on:
"2.2.14 Access into the site is constrained due to potential access roads coming through residential estates. It is located close to the existing primary school (as marked on the plan) and potential highway congestion which could be caused on the local highway network. There would be no additional land if the school had to expand in the future to accommodate more than 420 places."
In addition, in respect of site 3, paragraph 2.2.15 of the ES noted that "noise levels here would likely be similar to those at the existing primary school which would be in excess of the application site's noise levels". In other words, Maids Cross Way would be noisier than the proposed site for the school. It is the Maids Cross Way site that is favoured by the appellant.
(d) Site 4: Maids Cross Hill: It was noted that this site was currently a field and not subject to any planning applications or adjacent to any sites that were the subject of planning applications. It was also outside the development boundary of Lakenheath. Paragraph 2.2.18 went on:
"It was considered by the applicant that as the site is isolated and there was no reasonable prospect of a planning application coming forward it was to be discounted."
(e) Site 5: Eriswell Road: This was towards the south of the village, away from most of the proposed new homes. The ES noted that the land costs for this alternative site would be at full residential value. Paragraph 2.2.20 went on:
"The location of the site for a school is not ideal in respect of planned growth of the village."
(f) Site 6: Sparks Farm: This alternative site was noted as being subjected to considerable noise because it was "very close to the end of the runway and almost directly beneath the take-off path so short-term noise from aircraft taking off is likely to be very high". It also noted that the site, which was a long way south of the village, was detached from the Lakenheath settlement "and would have the potential of causing highway issues if there was not also a school developed for Lakenheath. Paragraph 2.2.24 added:
"Given the noise, location and potential traffic constraints the site was discounted."
(g) Site 7: Current school site: Paragraph 2.2.25 of the ES noted that "there is insufficient land available to extend the school to accommodate the required growth/capacity." Nobody suggested that Site 7 was ever a viable (let alone main) alternative and it did not feature in any of the submissions on appeal.
(a) As noted at paragraph 7 above, there had been numerous meetings and discussions in relation to the proposal over the three years before the planning application was first made. By way of example, the court was shown an email sent by the PC on 27 February 2015 in which they set out what they described as "our pros and cons list for the four main possible school sites in Lakenheath" and going on to note that the PC's preferred option was Maids Cross Way (Site 3 in the ES).
(b) Prior to the planning meeting in October 2018, the PC sent a lengthy four page submission about the proposal and, in particular, the alternative sites. Paragraph 20 of these detailed comments said:
"It would appear that when decisions were made regarding the potential School sites that cost was the driving force. On page 10 item 2.2.8 Lakenheath North site was offered at no cost to you and yet a concern was expressed of the site being isolated. Maids Cross Way was with acquisition costs. Item 2.2.13 states that this would be a suitable site for the school and it was also described as being well located to the rest of Lakenheath but ruled out because of the access into the site being constrained and a concern of congestion to the local highway network, something the chosen site would cause too. Maids Cross Hill, owned by the diocese, was ruled out as it's outside of the development boundary of Lakenheath and for being isolated. Just as the chosen site is. Sparks Farm again refers to the site being detached from the Lakenheath Settlement and having the potential of causing highway issues, again just as the chosen site will. In our view cost should not be the driving force for making decisions relating to children's education and well being. Safety should be the driving force not money."
(c) The PC made oral representations along these lines at the meeting of the respondent's planning committee on 16 October 2018.
"34. Both buildings would have enhanced sound insulation to protect against aircraft noise, including non-opening acoustic laminated double glazing, acoustically-rated external doors and sound lobbies, acoustically-attenuated mechanical ventilation or mechanically-assisted hybrid ventilations.
35. A number of noise mitigation huts would be provided as refuges during periods of loud aircraft noise. Three are proposed on the playing field, and one each in the play area of the Reception and Pre-School classes…
47. The do-nothing option is not considered appropriate as the proposal seeks to meet development needs. Lakenheath has been identified to receive a considerable level of housing growth and additional educational infrastructure needed to support this growth.
48. The applicant has considered the need for a new primary school in Lakenheath since 2013. Several site options have been considered: see Table 1 below…"
[Table 1 dealt with the alternative sites in very similar terms to the ES, as set out in paragraph 10 above]
"69. The noise impact assessment addresses all the relevant issues. The [Adrian James] report states that the site is considered acoustically suitable for a primary school. I generally agree with the assessment methodology adopted and the recommendations given in the report. I consider, however, that aircraft noise could prove a significant issue in any external teaching areas. If there are to be any such areas, I recommended you satisfy yourself that the school body are fully aware of it and accept the limitations on the use of any external areas.
70. The survey confirms that aircraft noise is very significant on the site with average noise levels (LAEQ 30 min) generally above 55 DBA over 60 DBA for around half the time and even reaching 70 DBA on a few occasions. The proposed solution to achieve the noise criteria set out in BB 93 inside classrooms is enhanced facade of high performance acoustic glazing and mechanical ventilation. This is considered an acceptable approach.
71. The measured noise levels far exceed the desirable noise levels in external areas due to aircraft flyovers. AJA, who conducted the noise surveys, point out that the noise climate is relatively quiet for the majority of the time interspersed with high noise levels when teaching outside could be paused. Consider it imperative that the school body are aware of this limitation and are willing to accept it…"
[Paragraphs 119 and 120 identify the relevant noise standards and guidance and explain how the new buildings would meet the relevant guidelines.]
"122. An onsite noise survey was conducted for one week during March 2018. This indicated that external noise levels average 66. DBLAEQ 30 min and typically peaked at between 80 and 85 DB. This would considerably exceed the above guideline. It is unlikely a teacher would be able to address a group of children for the duration of an aircraft overflight and teaching would have to be paused for short periods during overflights. Five covered shelters would be provided around the school sites to provide some mitigation of direct noises for pupils' comfort during external play and teaching in small groups. These shelters are expected to provide around 5 DBA reduction in noise levels. The precise degree of mitigation would be determined by their detailed construction and siting to be agreed by condition on any grant of planning permission...
124. Planning guidance accompanying the NPPF states that the impact of noise levels will depend on how various factors combine in any given situation, including the source and absolute level of noise. For non-continuous sources of noise the number of noise events and the frequency and pattern of occurrence of the noise, the spectral content and general character of the noise. It also states that noise impacts should not be considered in isolation separately from economic, social and other dimensions of the project.
125. On the proposed site average daytime noise levels during school hours are mainly influenced by relatively short periods of high noise levels due to overflying aircraft with relatively low and constant residual noise levels at other times. Analysis of the four 30 minute periods during school hours with the highest measured short-term noise levels shows that aircraft noise typically peaked at 80 to 58 DBA, but that these averaged less than seven minutes in duration.
126. The applicant has confirmed acceptance that overflying would impose some limitation on the use of external areas for teaching due to short periods of loud noise. It considers the sound-limiting pods could be used as teaching or play spaces for younger pupils and for formal sports tuition instruction, if it is taking place outside when overflying is in progress…"
[At paragraph 161, the officer noted that the proposed site was allocated for a primary school in the emerging Local Plan.]
"162. The main policy breach relates to impact of aircraft noise on external areas of the school which cannot be fully mitigated. Although noise levels from passing aircraft may interrupt teaching in outside areas, this would be for relatively short periods and, given its sporadic nature, not all external lessons would be affected. The applicant has confirmed that this limitation on the use of outside areas for teaching is accepted.
163. Aircraft noise is endemic to the Lakenheath area. Published noise contours for RAF Lakenheath show that the application site is in a relatively favourable noise environment, as noise levels increase in a southerly direction towards the village centre. By comparison, the existing Lakenheath Primary School is on the 72 DB contour in a noisier environment than the application site. Its school buildings were not constructed to defend against aircraft noise, but, despite this, it has a good Ofsted rating and Ofsted reports do not mention military aircraft noise as an issue.
164. While noise nuisance is clearly a dis-benefit in the planning balance, the weight to be attributed to it is reduced by its sporadic nature and because it cannot be avoided if a new school is to be built to serve the new housing planned on the north side of Lakenheath. Government planning guidance makes it clear that in the planning balance noise should not be considered in isolation.
165. On site specific issues there is a large degree of conformity with the NPPF and Local Plan Policies. Taken as a whole, the proposals are considered to constitute sustainable development where any adverse impacts are decisively outweighed by the benefits of a new village school and preschool. I therefore recommended that planning permission is granted with the conditions set out in para.13 above."
"2. The development users and associate activities hereby approved shall only be carried out in accordance with … (xviii) Environmental Statement Appendix 7.1 Noise Technical Report…
21. Prior to their construction, details of the noise attenuation shelters shall be submitted to and approved in writing by the county planning authority. Such details shall include constructional details, facing materials, overall dimensions and orientation of openings. The shelters shall be provided in the approved form and, thereafter, be retained.
27. Following completion of construction and prior to occupation, a copy of the test report carried out in accordance with the recommendation of BB 93 Acoustic Design for Schools shall be submitted to and approved in writing by the county planning authority."
3. THE DECISION OF THE JUDGE
"65. In my judgment, the officer's report and, therefore, the planning authority's decision in reliance upon it, can be demonstrated evidentially to have satisfied this requirement, despite the absence of explicit reference to it in literal terms. All concerned identified and reflected upon the excessive levels of noise that would exist in the outdoor areas surrounding the new school. Steps were taken either to remove the disadvantages for those with protected characteristics, in the conditions attached to the planning permission, by the requirements that would achieve quieter indoor sound levels in the new school than would be provided to those groups in the existing school or to minimise them by the provision in the outdoor areas of noise attenuation shelters designed and constructed to achieve an approved standard. By providing that removal or minimisation of the disadvantages, while also providing new school places, shows that regard was had to meeting the needs of children with relevant protected characteristics to be placed in mainstream education who would live in the new housing. The effect would be to encourage their participation in the activity of education to which, therefore, due regard was had."
"71. The question for the planning authority, therefore, was to decide whether the adverse environmental impact of excessive noise at the proposed site weighed in the scale of planning decision making so heavily as to require refusal of permission. That is to conduct an EIA, at least in substance, which is what the authorities require this court to evaluate. Moreover, it is material that at no stage has the claimant, or anyone else, identified yet further alternatives to be considered. The planning decision in this case proceeded upon the conclusion that even the adverse impact of excessive outdoor noise at the proposed site, balanced against the needs and benefits identified, justified the grant of planning permission, even though the environmental impact at alternatives sites considered was either no worse or in many, if not most cases, less severe or even absent. That is a matter for the planning judgement of the officers and the authority. I do not consider that the officer's report materially misled the planning authority in this respect. Accordingly, ground 3 of the challenge fails."
4. THE CONTEXT FOR THIS APPEAL
(a) There is an overwhelming need for a new school in Lakenheath created by the likelihood of 663 new homes in the village in the next few years. The existing school is at capacity and this is the only current proposal for a new school to cater for that need.
(b) The National Planning Policy Framework ("NPPF") states that, in any planning decision, "great weight" is to be given to the creation of new schools. This was a matter to which the officer said, at paragraph 117 of his report, "significant weight attaches."
(c) Forest Heath Core Strategy Policy CS13 (cited repeatedly in the officer's report) links the release of any land for development with sufficient infrastructure, a matter of which, at paragraph 114, the officer said "should be attributed significant weight" when this proposal for a new school (an important element of infrastructure) was considered.
(d) The proposed site for the new school at Station Road was in accordance with the Local Plan which was being prepared at the time of the application, and is in accordance with the Local Plan as now completed.
(e) The new school will have extensive noise insulation and mitigation measures. It will be a quieter environment than the existing school.
(f) The problem of external noise is beyond the respondent's control. That noise will be mitigated at the new school in a way that it is not at the existing school.
(g) The alternative site at Maids Cross Way favoured by the appellant has access issues. More significantly, it has the same noise levels as the existing school, which makes it noisier – and therefore a worse option from the point of view of noise - than the proposed site at Station Road.
(h) The planning officer's advice was unequivocal: that "the proposals are considered to constitute sustainable development where any adverse impacts are decisively outweighed by the benefits of a new village school and pre-school."
5. GROUND 1: PSED
5.1 The Law
"149. Public sector equality duty
(1)A public authority must, in the exercise of its functions, have due regard to the need to—
(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2)A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c)encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4)The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5)Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a)tackle prejudice, and
(6)Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7)The relevant protected characteristics are—
- gender reassignment;
- pregnancy and maternity;
- religion or belief;
- sexual orientation.
(8)A reference to conduct that is prohibited by or under this Act includes a reference to—
(a)a breach of an equality clause or rule;
(b)a breach of a non-discrimination rule.
(9)Schedule 18 (exceptions) has effect.
"26.(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty."
"44. In my judgment, the previous decisions of the courts on the present subject of the application and working of the PSED, as on all subjects, have to be taken in their context. The impact of the PSED is universal in application to the functions of public authorities, but its application will differ from case to case, depending upon the function being exercised and the facts of the case. The cases to which we have been referred on this appeal have ranged across a wide field, from a Ministerial decision to close a national fund supporting independent living by disabled persons (Bracking) through to individual decisions in housing cases such as the present. One must be careful not to read the judgments (including the judgment in Bracking) as though they were statutes. The decision of a Minister on a matter of national policy will engage very different considerations from that of a local authority official considering whether or not to take any particular step in ongoing proceedings seeking to recover possession of a unit of social housing."
5.2 Having Due Regard To The PSED
5.3 Section 31(2A)
"The High Court – (a) must refuse to grant relief on an application for judicial review… if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred".
"47. We remind ourselves that our starting point here is not to consider the merit of Mr Streeten's argument on the scope of the duty in section 31(2A). We are not re-making the permission decision, or even at this stage considering whether there is a "powerful probability" that Rafferty L.J.'s decision to refuse permission was wrong. In our view, however, the proposition that the section 31(2A) duty applies only to "conduct" of a merely "procedural" or "technical" kind, and not also to "conduct" that goes to the substantive decision-making itself, is a surprising concept. The duty has regularly been applied to substantive decision-making across the whole spectrum of administrative action, including in the sphere of planning, both at first instance and in decisions of this court (see, for example, the judgment of Lindblom L.J. in R. (on the application of Williams) v Powys County Council  EWCA Civ 427, at paragraphs 71 to 73). Although we did not hear full argument on the point, we would be prepared to say that the narrow construction of section 31(2A) contended for by the parish council is, on the face of it, mistaken. It does not seem to us to gain any real support in the first instance decisions on which Mr Streeten relied. The concept of "conduct" in section 31(2A) is a broad one, and apt to include both the making of substantive decisions and the procedural steps taken in the course of decision-making. It is not expressly limited to "procedural" conduct. Nor, in our view, is such a qualification implied. But this, we must stress, is not a necessary conclusion for the purposes of our decision on the application to re-open…
55. The mistake in Mr Streeten's submissions here is that, in the context of a challenge to a planning decision, they fail to recognize the nature of the court's duty under section 31(2A). It is axiomatic that, when performing that duty, or, equally, when exercising its discretion as to relief, the court must not cast itself in the role of the planning decision-maker (see the judgment of Lindblom L.J. in Williams, at paragraph 72). If, however, the court is to consider whether a particular outcome was "highly likely" not to have been substantially different if the conduct complained of had not occurred, it must necessarily undertake its own objective assessment of the decision-making process, and what its result would have been if the decision-maker had not erred in law.
56. It is, in our view, clear from Rafferty L.J.'s reasons that she was not persuaded there was a real prospect of establishing that, in performing the section 31(2A) duty, Cranston J. had trespassed into the forbidden territory of planning judgment. She did not need to say more than she did to make this clear. Mr Streeten highlighted Cranston J.'s use of the word "weighty" in paragraph 69 of his judgment to describe the factors seen by the district council's officer as going in favour of the grant of planning permission, and outweighing the harm to the conservation area. Rafferty L.J., however, was plainly unpersuaded that this was anything other than the judge's description of the officer's own planning assessment, supported, to the extent it was, by the conservation officer's response. She plainly also accepted that the officer's assessment had, quite legitimately, informed, but not dictated, the judge's own conclusion in performing the section 31(2A) duty. Otherwise, her conclusion would have had to be different."
6. GROUND 2: THE ES
6.1 The Law: Assessment of Alternatives
"'Environmental information' means the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;
"'Environmental statement' means a statement -
(a) that includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development... but
(b) that includes at least the information referred to in Part 2 of Schedule 4"
"66. Further, since, according to Article 5(3)(d) of the EIA Directive, only an outline of those alternatives must be supplied, it must be held that that provision does not require the main alternatives studied to be subject to an impact assessment equivalent to that of the approved project. That said, that provision requires the developer to indicate the reasons for his choice, taking into account at least the environmental effects. One of the aims of imposing on the developer the obligation to outline the main alternatives is that reasons for his choice should be stated.
67. That obligation on the developer ensures that, thereafter, the competent authority is able to carry out a comprehensive environmental impact assessment that catalogues, describes and assesses, in an appropriate manner, the effects of the approved project on the environment, in accordance with Article 3 of the EIA Directive.
68. Last, it must be observed that the outline referred to in that provision must be supplied with respect to all the main alternatives that were studied by the developer, whether those were initially envisaged by him or by the competent authority or whether they were recommended by some stakeholders.
69. In the light of the foregoing, the answer to the fifth, sixth and seventh questions is that Article 5(3)(d) of the EIA Directive must be interpreted as meaning that the developer must supply information in relation to the environmental impact of both the chosen option and of all the main alternatives studied by the developer, together with the reasons for his choice, taking into account at least the environmental effects, even if such an alternative was rejected at an early stage."
"Article 5(3)(d) requires a developer to provide in the ES sufficient information to enable a comparative assessment of the relative environmental effects of the proposed development and each of the main alternatives studied".
He accepted that Holohan did not express it in that way, and he agreed that he was unable to rely on any other authority in support of it.
6.2 The Law: The Test For Judicial Review In These Circumstances
"41. Ground 1 in these proceedings is an example of the unduly legalistic approach to the requirements of Sch.4 to the Regulations that has been adopted on behalf of claimants in a number of applications for judicial review seeking to prevent the implementation of development proposals. The Regulations should be interpreted as a whole and in a common-sense way. The requirement that ''an EIA application'' (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R. v North Yorkshire CC Ex p. Brown  1 AC 397, at p.404, the purpose is ''to ensure that planning decisions which may affect the environment are made on the basis of full information''. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the ''full information'' about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ''environmental information'' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between."
"419. We turn to the EIA authorities. In Blewett, the complaint was that the environmental statement for a proposed extension to a landfill site contained no assessment of the effect of the scheme on groundwater protection. Instead, the minerals planning authority decided that that matter could be left to be assessed following the grant of planning permission, by assuming that complex mitigation measures would be successful. Sullivan J held that the starting point was that it was for the local planning authority to decide whether the information supplied by the applicant was sufficient to meet the definition of an environmental statement in the EIA Regulations, subject to review on normal Wednesbury principles (see -). Information capable of meeting the requirements in schedule 4 to the EIA Regulations should be provided (see ), but a failure to describe a likely significant effect on the environment does not result in the document submitted failing to qualify as an environmental statement or in the local planning authority lacking jurisdiction to determine the planning application. Instead, deficiencies in the environmental information provided may lead to the authority deciding to refuse permission, in the exercise of its judgment (see ). Thus, the statement in , that the deficiencies must be such that the document could not reasonably be described as an environmental statement in accordance with the EIA Regulations, was in line with the judge's earlier observations in -. It simply identified conventional Wednesbury grounds as the basis upon which the court may intervene.
420. In Shadwell Estates Ltd v Breckland District Council  EWHC 12 (Admin) at , Beatson J referred to a number of authorities which had taken the same approach in EIA cases to judicial review of the adequacy of environmental statements or the environmental information available: R v Rochdale MBC ex parte Milne  EWHC 650 (Admin);  Env LR 22 at , R (Bedford and Clare) v Islington London Borough Council  EWHC 2044 (Admin);  Env LR 22 at  and , and Bowen-West v Secretary of State for Communities and Local Government  EWCA Civ 321;  Env LR 22 at . In Bedford and Clare, Ouseley J held that the environmental statement for the development of a new stadium for Arsenal was not legally inadequate because it had failed to assess transportation impacts using the local authority's preferred modal split, the loss of an existing waste handling capacity to make way for the development, noise effects at night and on bank holidays, contaminated land issues, and the effects of dust during construction. He considered that the significance or otherwise of those matters had been a matter for the local authority to determine. The claimant's criticisms did not show that topics such as modal split or noise effects had not been assessed at all. Instead, they related to the level of detail into which the assessment had gone and hence its quality. That was pre-eminently a matter of planning judgment for the decision-maker and not the court."
"136. The answer, we think, must be apt to the provisions themselves. The court's role in ensuring that an authority - here the Secretary of State - has complied with the requirements of article 5 and Annex I when preparing an environmental report, must reflect the breadth of the discretion given to it to decide what information "may reasonably be required" when taking into account the considerations referred to - first, "current knowledge and methods of assessment"; second, "the contents and level of detail in the plan or programme"; third, "its stage in the decision-making process"; and fourth "the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment". These requirements leave the authority with a wide range of autonomous judgment on the adequacy of the information provided. It is not for the court to fix this range of judgment more tightly than is necessary. The authority must be free to form a reasonable view of its own on the nature and amount of information required, with the specified considerations in mind. This, in our view, indicates a conventional "Wednesbury" standard of review - as adopted, for example, in Blewett. A standard more intense than that would risk the court being invited, in effect, to substitute its own view on the nature and amount of information included in environmental reports for that of the decision-maker itself. This would exceed the proper remit of the court."
6.3 The Wednesbury Challenge To The ES
6.3 Did The Breach Make Any Difference?
"Here by contrast the potential prejudice to public and private interest from quashing the order is very great. It would be extraordinary if, in relation to a provision which is in terms discretionary, the court were precluded by principles of domestic or European law from weighing that prejudice in the balance."
"54. Having found a legal defect in the procedure leading to the grant of permission, it is necessary to consider the consequences in terms of any remedy. Following the decision of this court in Walton v Scottish Ministers  UKSC 44,  PTSR 51, it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice (para 139 per Lord Carnwath, para 155 per Lord Hope).
55. Those statements need now to be read in the light of the subsequent judgment of the CJEU in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12)  PTSR 311. That concerned a challenge to proposals for a flood retention scheme, on the grounds of irregularities in the assessment under the EIA Directive. A question arose under article 10a of the Directive 85/337 (article 11 of the 2011 EIA Directive), which requires provision for those having a sufficient interest to have access to a court to challenge the "substantive or procedural" legality of decisions under the Directive. One question, as reformulated by the court (para 39), was whether article 10a was to be interpreted as precluding decisions of national courts that make the admissibility of actions subject to conditions requiring the person bringing the action – "… to prove that the procedural defect invoked is such that, in the light of the circumstances of the case, there is a possibility that the contested Page 26 decision would have been different were it not for the defect and that a substantive legal position is affected thereby…
58. Allowing for the differences in the issues raised by the national law in that case (including the issue of burden of proof), I find nothing in this passage inconsistent with the approach of this court in Walton. It leaves it open to the court to take the view, by relying "on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court" that the contested decision "would not have been different without the procedural defect invoked by that applicant". In making that assessment it should take account of "the seriousness of the defect invoked" and the extent to which it has deprived the public concerned of the guarantees designed to allow access to information and participation in decision-making in accordance with the objectives of the EIA Directive."
LADY JUSTICE ASPLIN:
LORD JUSTICE FLOYD:
Note 2 Mr Streeten’s oral submissions accepted that this was the most which the report needed to include. As he put it, “It could have been very short. Someone should have flagged it for the planning committee to say either that the children in question would have to be educated elsewhere or that it will be difficult, but we could try and get round it.” [Back]
Note 2 Mr Streeten’s oral submissions accepted that this was the most which the report needed to include. As he put it, “It could have been very short. Someone should have flagged it for the planning committee to say either that the children in question would have to be educated elsewhere or that it will be difficult, but we could try and get round it.” [Back]