QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|YOUNGER HOMES (northern) LTD||(CLAIMANT)|
|(1) FIRST SECRETARY OF STATE||(1ST DEFENDANT)|
|(2) CALDERDALE METROPOLITAN DISTRICT COUNCIL||(2ND DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR TIMOTHY MOULD (instructed by THE TREASURY SOLICITORS) appeared on behalf of the 1ST DEFENDANT
MR VINCENT FRASER QC (MR CJ HUNTER 26/11/03 only) (instructed by LEGAL DEPARTMENT TO CALDERDALE MDC) appeared on behalf of the 2ND DEFENDANT
Crown Copyright ©
"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, or
(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."
There is no dispute but that the development was within Annex 2 to the Directive, as an urban development project within paragraph 10(b). Annex 3 contains the selection criteria referred to in Article 4 paragraph 3.
"'EIA application' means an application for planning permission for EIA development:
'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."
It is agreed that this was Schedule 2 development because it fell within the scope of an urban development project in the Schedule to the Regulations, which parallels Annex 2 to the Directive, and the size threshold of 0.5 hectare was exceeded. It was not a sensitive area. It was not accepted, however, that it was likely to have any significant environmental effect, and that is where the debate centres.
"(2) A request for screening opinion shall be accompanied by---
(a) a plan sufficient to identify the land;
(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and
(c) such other information or representations as the person making the request may wish to provide or make.
(3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.
(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."
Regulation 5(5) is also relevant to an argument raised by the Claimant:
"(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request."
"(1) Where it appears to the Secretary of State that an application for planning permission which has been referred to him for determination---
(a) 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 6 shall apply as if the referral of the application were a request made by the applicant pursuant to regulation 5(6)."
Regulations 6(3) and (4) provide:
"(3) The Secretary of State shall, if he considers that he has not been provided with sufficient information to make a screening direction, notify in writing the person making the request pursuant to regulation 5(6) of the points on which he requires additional information and may request the relevant planning authority to provide such information as they can on any of those points.
(4) The Secretary of State shall make a screening direction within three weeks beginning with the date of receipt of a request pursuant to regulation 5(6) or such longer period as he may reasonably require."
"(2) The events referred to in paragraph (1) are---
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development."
The distinction in wording reflects the Secretary of State's power to overrule the Local Planning Authority's opinion, whether on a request to overrule a positive decision or, of his own motion, to overrule a negative one.
"'screening opinion' means a written statement of the opinion of the relevant planning authority as to whether development is EIA development."
"30. For the purposes of Part XII of the Act (validity of certain decisions), the reference in section 288 to action of the Secretary of State which is not within the powers of the Act shall be taken to extend to a grant of planning permission by the Secretary of State in contravention of regulations 3 or 25(1)."
"(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)."
"Urban development projects (including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiple cinemas)
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 for the scheme is more than 5 or
hectares; or it would provide a total of more than 10,000 m2 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)."
"A site of 3.77 ha, again for retail (and leisure) purposes, which therefore falls into the same category as the above ie s10(b) of Schedule 2.
This time the site is already built up with massive silos occupying the centre of the site. Para A18 of the advice is therefore relevant - 'EIA ... unless scale of development is significantly greater'. In volume, that is unlikely to be the case although the main retail block would cover a larger ground area. (However, most of the site is already tarmac covered/occupied by buildings.) Overall, the scale of redevelopment is considered similar; the traffic impact will be greater in attracting numbers of cars, but the closure of Mill Royd Street will reduce the cross-site movements, so in traffic terms it is a case of swings and roundabouts. There is unlikely to be a high level of contamination.
Site not considered to fall into para 33/a/b/c therefore EIA not required."
The claimant's contentions
Delegation and/or authority
The EIA and the need for an environmental statement
"However, it is the Council's case that it did take into account off-site traffic impacts. I was aware from knowledge of pre-application discussions with the applicant that a Traffic Impact Assessment was to be submitted along with the application. This TIA was expected to cover all traffic matters, including off-site impacts (and did indeed do so). With this expectation, I did not consider that traffic matters in themselves would have necessitated submission of an EIA since this would have involved unnecessary duplication. Nevertheless in assessing the need for an EIA I did give consideration to the questions of both the diversion of the existing traffic and distribution of traffic likely to be generated by the development (particularly cars) on to both the existing nearby road network and the new road to be built west of the site (to accommodate existing North-South traffic movements). My conclusion, based on my knowledge of the proposal and its location, was that on balance its impact would not be so significant as to justify the need for an EIA."
Mr Harwood relies on the sentence starting "With this expectation ... " Mr Mould and Mr Fraser rely on the rest of the paragraph, and in particular the last sentence.
Contamination and Conditions
"Please find below the comments from each specialist function of the Agency. Due to the complexity of the site and its environmental needs I believe a 'round table' meeting is necessary between Agency Specialists and all other interested parties, in order to progress the application. I therefore await your call at your convenience.
The Agency has no objections, in principle, to the proposed development but recommends that if planning permission is granted the following planning conditions are imposed.
It is suggested that a meeting be held to look at this development and how our conditions would affect the development. We have already carried out some investigations and we are looking to the previous industrial activities on the site [which] may have resulted in contamination of the underlying land and groundwater. The site is underlain by alluvium and so any groundwater is likely to be in hydraulic continuity with the River Calder. The applicant may contact the Groundwater Section of the Environment Agency to discuss the scope of the contamination investigation and Reclamation Method Statement."
It recommended that a condition dealing with contamination be imposed.
"8. Development shall not commence until a scheme to deal with contamination of the site has been submitted to and approved in writing by the Local Planning Authority. The scheme shall include an investigation and assessment to identify the extent of contamination and the measures to be taken to avoid risk to the environment when the site is developed. The scheme shall be implemented in accordance with the scheme so approved before the relevant part of the development is brought into use."
"9. In other cases, particularly where there is only a suspicion that the site might be contaminated, or where the evidence suggests that there may be only slight contamination, planning permission may be granted but conditions should be attached to make it clear that development will not be permitted to start until a site investigation and assessment has been carried out and that the development itself will need to incorporate all the measures shown in the assessment to be necessary."
This contrasts with the previous paragraphs, which recommend site investigation before the application is determined where:
"8. However if it is known or strongly suspected that the site is contaminated to an extent which would adversely affect the proposed development or infringe statutory requirements, an investigation of the hazards by the developer and proposals for any necessary remedial measures required to deal with the hazards will normally be required before the application can be determined by the local planning authority."
They said that the conclusions of Mr Raper showed it to be in the former category.
"34. In his judgment in the present case, Richards J underlined, at paragraph 75, and in my view correctly underlined, Sullivan J's statement that each case will turn upon its own particular facts and that 'it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development'. I do, however, agree with Mr Lindblom's submission that the judgment as to whether an EIA is required is a judgment different from and to be made before an assessment of the procedures appropriate if an EIA is held to be required.
35. I also find persuasive the submissions on behalf of the Secretary of State to Richards J in the present case, though their relevance to the test actually applied by the Secretary of State will need to be considered. As summarised by the judge (paragraph 61), they were:
'On the information before him the Secretary of State was entitled to form the judgment that a development carried out in accordance with the stated remediation strategy was unlikely to give rise to significant effects. He was entitled to take the view that the outstanding details of the remediation works and the elements of uncertainty were not such as to affect the judgment or to create a likelihood of significant effects. In other words this was a case where the Secretary of State was reasonably satisfied that the boundary would not be crossed.'
37. The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously but the Secretary of State is not as a matter of law required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not in my judgment pre-determined either by the complexity of the project or by whether remedial measures are controversial though in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration.
39. It follows that I do not accept the submission of Mr Wolfe, for the respondent, that proposed mitigating measures are to be ignored when a screening decision is made or his submission that the 'proposed development' for the purposes of regulation 2 is the proposal shorn of remedial measures incorporated into it. That would be to ignore the 'actual characteristics' of some projects. He is, however, correct in his submission that devising a condition which is capable of bringing the development below the relevant threshold does not necessarily lead to a decision that an EIA is unnecessary. The test stated in Bozen requires a fuller scrutiny of the likely effects of the development project ... All aspects of the development project must be considered; the relevant considerations may be different in a case where the central problem is the eventual effect of the development upon the environment and a case such as the present where the central problem arises from the current condition of the land.
41. When making the screening decision, these contingencies must be considered and it cannot be assumed that at each stage a favourable and satisfactory result will be achieved. There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached."
Then Laws LJ said:
"46. ... Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted~...
47. ... but notwithstanding Mr Lindblom's protestations as to the degree of detail relating to remediation which had been put before the Secretary of State, as it seems to me the very terms of Condition VI show that the nature, extent and degree of the contamination present on the site had not yet been established, or precisely established; nor had the character of the site investigation that would be required."
"38. ... It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. 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.
39. I accept that the authority must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment. But this does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter. As the judge said, 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."
I shall have to return to those cases in the context of another submission by Mr Harwood relating to the adequacy of the information before Mr Raper.
Sufficiency of information
The availability of judicial review