QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LEBUS AND OTHERS|
|SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR J FINDLAY (instructed by SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL LEGAL DEPARTMENT) appeared on behalf of the Defendant.
Crown Copyright ©
"We suggest that, without an EIA and without a definitive, site specific noise study, the Council cannot possibly satisfy itself that this development will not give rise to unacceptable impacts on human health and amenity".
"The Council does not consider an Environmental Assessment mandatory for Schedule 2 development but rather consideration has to be given to each proposal on whether it would have significant effects on the environment by virtue of factors such as its location, impact, nature and size. I would be pleased to learn if the Council has misdirected itself on this point. When considering the need for an Environmental Assessment the above factors as well as issues such as:
Dirty water and litter disposal;
Highways and access; and
were taken into account. The Council did not wish to be drawn into requesting an Environmental Statement purely to get information it should rightfully expect anyway. It was considered all the above points could be covered in sufficient detail without formally requesting an Environmental Statement."
"After discussions with ADAS and Planning Officers, I would confirm that the scale of the application does not meet the guidance criteria laid down under the Town and Country (Environmental Impact Assessment England and Wales) Regulations 1999, Schedule 2. Despite various issued raised by the protesters, I do not consider it necessary to change this view. This has already been brought to the attention of some of the residents in writing by the Planning Director."
"...formal legal advice be sought to verify that an Environmental Impact Assessment will not be required for the egg production unit under The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999."
"I attach a copy of the applications and a letter dated 26th April from Paul Grainger which explains why it is considered an Environmental Impact Assessment for the proposed egg production unit would not be mandatory."
"I explained [to Councillor Quinlan] that Paul Grainger and David Rush had taken a view on these matters [that is matters of pollution and the like] and were of the opinion, and remain of the opinion, that this falls outside the scope of the regulations."
"In July 2000, a Screening Summary Table... was drawn up which faithfully and accurately recorded the screening decision I made earlier. In short, whilst I and my senior officers appreciated the existence of potential adverse impact in some respects, we agreed that in every respect such impact would be insignificant given proper planning conditions and management enforceable under section 106. As far as I am aware, this document was never before the Committee when it took its decision. This Table was compiled for the purpose of creating a file record and there was no reason to place it before the Committee."
"You should document your decision by reference to the relevant criteria in order to demonstrate that you have complied with the regulations in accordance with your delegated authority."
"A screening process was carried out and the relevant documentation has been provided."
"The Planning Department has delegated powers to determine whether an Environment Impact Assessment (EIA) would be required...I can confirm that all the relevant factors were taken into account when the application was received and as a result that an EIA would not be required. Documentation to this effect has been provided."
"A screening decision was made in early March 2000. As to the first issue, it was decided that it [the development] was Schedule 2 Development as the flock size was below the minimum stipulated for Schedule 1... As to the second issue, consideration was made as to the potential significant effects of the development by reference to the criteria set out in paragraphs 1 and 2 of Schedule 3 of the Regulations, with regard to the characteristics of the development...and its location. The criteria considered to be particularly relevant to the application were:
The size of the development.
The production of waste.
Likely pollution and nuisances...
Environmental sensitivity of the geographical area affected.
In addition, consideration was given to the potential impact on local people.
Having considered all the relevant criteria it was concluded that the potential impact of the development in each instance was not significant and therefore, it was not considered necessary to seek an Environmental Impact Assessment Statement. The previous refusal of planning permission was taken into account as well as the differences between that proposal and the current one.
In July 2000 a Screening Summary Table was placed on the planning file. This document faithfully and accurately recorded the screening decision made in March 2000.
Whilst the existence of potential adverse impact in some respects was appreciated, it was concluded that in every respect such impact would be insignificant given proper planning conditions and management enforceable under section 106 of the Town and Country Planning Act 1990. It was not considered necessary to produce the Screening Summary Table to Committee but merely to report the outcome of the decision.
In the Report to Committee dated 6th September 2000 the following conclusion was made:
"I consider that through the implementation of pollution control measures and appropriate management techniques the egg production unit will not cause an unacceptable level of environmental pollution or have an adverse impact upon the health of the community or the local residents."
""EIA development" means development which is either-
(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."
"Where it appears to the relevant planning authority that-
(a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations.
Paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."
"(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.
(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request."
""Screening opinion" means a written statement of the opinion of the relevant planning authority as to whether development is EIA development."
"(1) Where particulars of a planning application are placed on Part 1 of the register, the relevant planning authority shall take steps to secure that there is also placed on that Part a copy of any relevant-
(a) screening opinion;"
"In short, whilst I and my senior officers appreciated the existence of potential adverse impact in some respects, we agreed that in every respect such impact would be insignificant given proper planning conditions and management enforceable under section 106."
"I confess to having had some difficulty initially with this point. There is no doubt that it is for the planning authority to decide in the first instance whether or not there are likely to be significant effects on the environment such as to warrant an environmental statement. Can they conclude that there would be significant effects, save for the fact that they have required (or at least will require) the developer to take mitigating steps whose effect to render such effects insignificant? In my judgment they cannot. Paragraph 3 of Schedule 2, which sets out the information required (and in turn reflects Article 5 of the Directive read with Appendix IV) requires amongst other things that there is a description of the measures envisaged to "avoid, reduce and if possible remedy" adverse effects. The purpose is surely to enable public discussion to take place about whether the measures will be successful, or perhaps whether more effective measures can be taken than those proposed to ameliorate the anticipated harm. In my opinion, therefore, the question whether or not there are likely to be significant environmental effects should be approached by asking whether these would be likely to result, absent some specific measures being taken to ameliorate or reduce them. If they would, the environmental statement is required and the mitigating measures must be identified in it."
"A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment."
"Further, I assessed the impact of the proposal as a whole without taking into account any specific mitigating measures that went beyond what I thought was part and parcel of the proposal."
"It is not appropriate to wait until after planning permission has been granted, when it is too late to remedy the omission, and then complain that the screening opinion, which has been on the public register for some months, was erroneous. Each case will of course depend on its own particular facts, but, as a general rule, where there is a discrete challenge to a screening opinion, it should, in my judgment, be made promptly so that any error, if there is one, can be remedied before the planning application is considered by the local planning authority."
MR HARWOOD: My Lord, I am grateful. My Lord, I ask for orders quashing both planning permissions and for the Council to pay the claimants' costs, to be subject to detailed assessment if not agreed.
MR FINDLAY: My Lord.
MR JUSTICE SULLIVAN: Very well. Thank you very much. Both planning permissions are quashed, the Council is to pay the claimants' costs, subject to detailed assessment if not agreed. Anything else? Well, it only remains for me to thank you both very much indeed. I am sorry I was not able to do justice to the very long skeleton arguments. Thank you both.