QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (Jones)
|- and -
|Mansfield District Council
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Steel QC and Miss Sarah-Jane Davies (instructed by Browne Jacobson)
for the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Richards:
"The local planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so."
"'Schedule 2 application' means an application for planning permission for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
"1. An environmental statement comprises a document or series of documents providing, for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out, the information specified in paragraph 2 (referred to in this Schedule as "the specified information").
2. The specified information is
(a) a description of the development proposed, comprising information about the site and the design and size or scale of the development;
(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;
(c) a description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference to its possible impact on: human beings; flora; fauna; soil; water; air; climate; the landscape; the interaction between any of the foregoing; material assets; the cultural heritage;
(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects;
(e) a summary in non-technical language of the information specified above."
"20. In general terms, the Secretary of State's view is that environmental assessment will be needed for Schedule 2 projects in three main types of case:
(1) for major projects which are of more than local importance;
(2) occasionally for projects on a smaller scale which are proposed for particularly sensitive or vulnerable locations;
(3) in a small number of cases, for projects with unusually complex and potentially adverse environmental effects, where expert and detailed analysis of those effects would be desirable and would be relevant to the issue of principle as to whether or not the development should be permitted.
21. The Secretary of State's view is that the number of projects falling within these categories will be a small proportion of all Schedule 2 projects; and that in most cases there should be little difficulty in deciding whether or not environmental assessment is needed. It must be emphasised that the basic test of the need for environmental assessment in a particular case is the likelihood of significant environmental effects, and not the amount of opposition or controversy to which a project gives rise, except to the extent that the substance of opponents' arguments indicates that there may be significant environmental issues."
"30. Given the range of Schedule 2 projects, and the importance of locational factors, it is not possible to formulate criteria or thresholds which will provide a simple test in all cases of whether environmental assessment is or is not required. The most that such criteria can offer is a broad indication of the type or scale of the project which may be a candidate for assessment - and conversely, an indication of the sort of project for which assessment is not likely to be required.
31. Appendix A to this circular lists, for certain of the categories of projects in Schedule 2, criteria and thresholds of this kind which are intended to indicate types of cases in which, in the Secretary of State's view, environmental assessment may be required under the Regulations. These are only indicative: the fundamental test to be applied in each case is the likelihood of significant environmental effects. Projects which exceed these thresholds will not in every case require assessment; conversely, there can be no automatic presumption that projects falling below these thresholds will never give rise to significant effects, particularly where the proposed site is in a sensitive area. Nor should the absence of a threshold for a particular type of Schedule 2 development be taken to imply that all projects of that type can be assumed not to have significant effects. For some types of project the issue of significance is bound to be a matter of judgment and quantified criteria have little relevance."
"1. The concept behind the Abbot Road scheme is for a low density development of employment buildings with significant areas of strategic planting. Indeed the Local Plan Inspector recommended about 40% of the site should be landscaped. Accordingly the developed area of the site is likely to be significantly below the 20 hectare threshold referred to in the Circular.
2. The Local Plan Inspector drew comparison with another proposal and referred to the 'far less significant intrusion into open countryside' of the proposal as it would be bounded by the Western Bypass.
3. Finally in his report the Local Plan Inspector found that Abbot Road could accommodate the traffic generated without causing significant environmental harm.
4. I am of the opinion that the project is a local project and not of wider significance.
5. I am of the opinion that the location is not a particularly sensitive or vulnerable location.
6. I am of the opinion that the project is not unusually complex.
These points are relevant for the Council to bear in mind in its determination of whether EA is required against the criteria of the 1988 Regulations."
"Nottinghamshire County Council Rural Environment Group
It is acknowledged that the site is intensively farmed arable land with little conservation value, but there are other areas of concerns raised and these are summarised as follows:
(a) although there are no designated statutory or non-statutory wildlife areas on the site, there may be some species or habitats that could be of conservation concern;
(b) the proposal may lead to the loss of hedgerows which are valuable habitats and wildlife corridors;
(c) the ecological value of the site has not been adequately assessed, not being comprehensive due to when the surveys were carried out;
(g) no details of what would happen to the trees identified on the site, which can provide important wildlife habitats;
(h) insufficient information to determine the application;
(i) the site is considered important as a roosting site for Golden Plovers and it is felt that not enough information has been provided on alternative sites available in the area, if this site is developed .
Object to the proposal the reasons being summarised as follows:
(a) the loss of the site for use by Golden Plovers should be a material consideration;
(d) further studies should be carried out over a wider area to establish the likely impact of the development on the Plover population;
(e) the argument that birds will move to other areas is not sustainable;
(f) landscaping of the site would not be suitable for the Golden Plovers
Nottinghamshire Wildlife Trust
Several comments have been made by this organization at different periods during the processing of this application raising various concerns and objections and these can be summarised as follows:
(g) It is believed that there are bats in the vicinity and as they are protected under the Wildlife and Countryside Act, a comprehensive bat survey should be undertaken of the area including trees, farm buildings and outhouses to ascertain their status and distribution, to assess the potential effects from the development and put forward measures for their protection;
(h) several birds of high conservation concern have been seen at the site, therefore a full bird breeding survey should be carried out at the appropriate time of year to evaluate the status and distribution of protected and common birds on the site, potential impact, and measures for their protection and enhancement. The surveys and studies undertaken by the applicants fail to offer adequate assessments or appropriate mitigation measures, specifically in respect of the Golden Plovers for which this is a regionally important winter migration site .
North Notts Bat Group
Although there are no records of the farm itself, there are records of bats within a few miles of the site. The ecological survey identified that the site and the farm buildings may be important for bats. A full survey of the building should be carried out before any works are commenced and if it is established that there are bats using the buildings for a roost, the appropriate licence from the Department of the Environment, Transport and Regions must be applied for."
"The Golden Plovers
One issue to emerge as a consequence of public consultation has been the significance of the development upon the habitat of Golden Plovers. Evidence concerning this was not before me at the time that I made my determination in 1998 that Environmental Assessment was not required.
Nevertheless a request was made to the applicant to undertake an ecological study to assess the potential impact of the development on the site and the surrounding area was made and the applicant has provided a report of the ecological study and additional information specifically relating to Golden Plovers.
Once the relevant information was received English Nature were consulted and they have the following observations.
'Golden Plover in the context of this development proposal is protected only in so far as intentional killing and injuring under Part I of the Wildlife and Countryside Act 1981 (as amended). However it is unlikely that operations associated with the development will cause offences under this legislation. Consequently, paragraph 47 of PPG9 may therefore not apply to Golden Plover in this case.
Golden Plover is, however, listed on Annex 1 of the European Birds Directive 79/409/EC and the number of birds wintering around Penniment Farm, Mansfield are at least of local importance in a Nottinghamshire context. Even so, it is far from clear whether the proposed development would have a measurable impact upon the current Golden Plover numbers within the wider area available to this species in Nottinghamshire. The amount of Golden Plover wintering habitat that would be lost is also relatively small in terms of the amount available to the species within Nottinghamshire. In addition, it is likely that farming practices have far greater influence on wintering Golden Plovers than the loss of land to development. It is on this basis that English Nature considers that there are no substantiated grounds of a statutory nature on which we could object to this application.'
I consider that the highlighted comment of English Nature about the lack of clarity of any measurable impact enables me to advise that the development will not have a significant environmental impact upon the Golden Plover habitat" (original emphasis).
"There are certain conditions on the site that are important, in particular those which encourage its use by Golden Plovers and to a lesser extent by Lapwings. Information received from the applicant and various consultees, suggests that the site is an important roosting/feeding site for Golden Plover. It is important to the Plovers due to the character of the site, with its large open arable fields and few hedgerows or other features that could conceal potential predators. As with many rural habitat situations, this environment has been created by farming practices, over which the Local Planning Authority has little control and which could easily change without notice, negating any value the site currently has for the Golden Plovers. It is clear from the information received, and comments made, the full impact on the Golden Plovers by the development of the site cannot be accurately assessed, as it is considered as being only a small part of a much wider area used by them. It is also difficult to identify appropriate mitigation measures that could be carried out to address the loss of this site to development .
It is clear in this instance that there would be unavoidable loss of the fields used by the Golden Plovers and that it would not be possible to recreate the particular character of the site to compensate the loss. The applicant has offered in the form of a unilateral undertaking, to carry out further studies in and around the area of the proposed development site, in order to gain a better understanding of the Golden Plovers movements in the locality, which could then be used generally to assess the impact of this and other developments in the area. They have also suggested other initiatives to protect and enhance the Golden Plover habitats, but these would involve third parties playing an active role. The nature conservation bodies are of the opinion that this is not an appropriate approach .
Other ecological issues raised include the loss of hedgerows, bat roosts and habitats/feeding sites for various other species of birds and animals of conservation concern .
Although there is no clear evidence that bats use either the farm buildings or trees in the area, there is every possibility that they could. Even if this is the case there is no reason why the site cannot be developed subject to activities affecting possible bat habitats and roosts being carried out at the appropriate time of year. Further to this, various measures can be carried out to encourage their establishment in the locality.
A criticism of the ecological survey submitted, is that it does not give a full annual assessment of the site and there may be species of flora and fauna that may be present which have not been recorded. Since the application was first considered, the applicants have commenced some additional survey works, so that all species and habitats including the river catchment area, can be considered, in the preparation of appropriate mitigation measures that will be required. A commitment to the additional ecological survey work is also given in the unilateral undertaking.
Although it is acknowledged that the Golden Plovers may be affected by this proposal, I am of the opinion that there will be some benefits for wider nature conservation and that there are other overriding material factors, which support the proposal to develop this site."
"(12) No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a scheme of landscaping
(13) A landscape management plan shall be submitted to and approved in writing by the Local Planning Authority prior to the occupation of any development on site or any phase of the development, whichever is the sooner .
(14) Site clearance shall not take place during the bird breeding season March-July unless otherwise agreed in writing by the Local Planning Authority.
(15) Demolition of buildings on site shall only be undertaken in the months of September-October unless otherwise agreed in writing by the Local Planning Authority.
(16) Any trees to be removed from the site shall be felled in sections and lowered to the ground by ropes. These works shall only take place in the months of September and October in accordance with details which shall be submitted to and approved in writing by the Local Planning Authority."
"(9) The applicant is advised that the landscaping of the site must be undertaken in a manner which will encourage nature conservation and bio-diversity in the locality .
(11) The applicant is advised that any survey must include all species of birds and bats that may be using the existing buildings, trees and hedges on the site. The mitigation measures must also include a programme of management for existing trees and hedges on the site .
(14) English Nature must be notified if the proposal is likely to destroy or disturb bat roosts."
"Prior to the Commencement of Development of the Land (including tree felling, demolition works or rubbish clearance), a full ecological survey shall be undertaken to establish all ecological interests on the site and must include all fauna and flora elements. Any such survey shall cover a period of one calendar year and include details of all the trees and hedges, including type, position and condition, a bat survey to establish the level of occupancy and use, following which, the results of that survey and any details of appropriate mitigation measures and aftercare measures (including details of implementation phasing of new plant and animal habitat creation) to protect and/or replace/relocate/enhance habitats, ecosystems or any other elements important for nature conservation shall be submitted to and approved in writing by the Council. Thereafter the scheme shall be implemented as approved."
The claimant's case
"A necessary part of that environmental information is the environmental statement which must contain the specified information whether or not the application is outline. It is no answer to say that some of the specified information will be provided in due course at the reserved matters stage. This, no doubt, reflects the role of an outline planning permission under the 1990 Act. Once outline planning permission has been granted, the principle of the development is established.
Moreover, it is clear from the comprehensive list of likely significant effects in para 2(c) of Sched 3, and the reference to mitigation measures in para 2(d), that it is intended that in accordance with the objectives of the directive, the information contained in the environmental statement should be both comprehensive and systematic, so that a decision to grant planning permission is taken 'in full knowledge' of the project's likely significant effects on the environment. If consideration of some of the environmental impacts and mitigation measures is effectively postponed until the reserved matters stage, the decision to grant planning permission would have been taken with only a partial rather than a 'full knowledge' of the likely significant effects of the project ."
"114. The local planning authority are entitled to say, 'We have sufficient information about the design of this project to enable us to assess its likely significant effects on the environment. We do not require details of the reserved matters because we are satisfied that such details, provided they are sufficiently controlled by condition, are not likely to have any significant effect'.
120. Acknowledging the uncertainties that are inherent in a project of this nature and scale Mr Gilder explained that the environmental statement had considered 'the worst environmental impacts which would arise from the development, the so-called worst case'.
132. Mr Howell's criticisms of the proposed mitigation measures illustrate the unreality of the applicant's approach. It is said that there is no 'description of the measures proposed', merely a statement of objectives. This criticism stems from an over-literal interpretation of the words in paragraph 2(d). In the case of the bats and the greater crested newts that may be on this site , I do not see why the 'measures envisaged to avoid, reduce or remedy' possible harm to them should not comprise the undertaking of further surveys, discussion of the findings of those surveys with English Nature and devising detailed mitigation in the light of those discussions. Where there are well established mitigation techniques for dealing with disturbance to the habitat of certain creatures, such a description will be perfectly adequate. Indeed, it is difficult to see what more could be done.
134. In short, there was 'full knowledge', in the sense of there being available as much information as could reasonably be expected at this stage, about this kind of mitigation measure.
135. I repeat the view expressed in Tew that 'full knowledge' does not mean 'every conceivable scrap of information' about a project. Such an approach would not assist local planning authorities in identifying the likely significant environmental effects of major projects, and would merely serve to obstruct the development of such projects to no good purpose."
"61. They could only have concluded that those surveys should be carried out if they thought that bats or their resting places might, or were likely, to be found in the mine shafts. If their presence were found by the surveys and if it were found that they were likely to be adversely affected by the proposed development, it is, in my view, an inescapable conclusion, having regard to the system of strict protection for these European protected species, that such a finding would constitute a 'significant adverse effect' and a 'main effect' within the meaning of paragraphs 2 and 3 of Part II of Schedule 4 to the Regulations, with the result that the information required by those two paragraphs would have to be contained in the environmental statement and considered by the Planning Committee before deciding whether to grant planning permission.
62. Having decided that those surveys should be carried out, the Planning Committee simply were not in a position to conclude that there were no significant nature conservation issues until they had the results of the surveys. The surveys may have revealed significant adverse effects on the bats or their resting places in which case measures to deal with those effects would have had to be included in the environmental statement. They could not be left to the reserved matters stage when the same requirements for publicity and consultation do not apply. Having decided that the surveys should be carried out, it was, in my view, incumbent on the respondent to await the results of the surveys before deciding whether to grant planning permission so as to ensure that they had the full environmental information before them before deciding whether or not planning permission should be granted."
The council's case
i) In general a lesser degree of information will be needed at the first stage of deciding whether an EIA is required at all than at the second stage of providing the environmental information where an EIA is required. The relatively burdensome information requirements of the 1988 Regulations and of the Directive which they implement apply only to projects meeting the criteria laid down. It would be surprising if the same amount of information had to be provided for the purpose of deciding whether the criteria were met in the first place.
ii) Regulation 5, concerning screening opinions, gives a strong indication that the same amount of information is not generally required at the first stage. It contemplates a speedy decision on the basis of relatively limited information: a request for a screening opinion must be accompanied by a "brief description" of the nature and purpose of the proposed development and of its possible effects on the environment, and the authority must respond within three weeks unless an extension is agreed in writing with the person making the request. That is the basic position, albeit that it is of course open to the authority to request further information and to seek an extension of time for reaching its decision.
iii) The Directive's objective of ensuring that a decision whether to grant development consent is taken "in full knowledge" of the project's likely significant impact on the environment does not mean that an authority must have "full knowledge" of the environmental effects at the stage of deciding whether a project requires an EIA at all. The objective of "full knowledge" applies only at the later, not at the earlier, stage. (It is also important not to read too much into the requirement of full knowledge even at the later stage: see the observations of Sullivan J in Milne at paras 94 and 134-135.)
iv) Whether sufficient information is available to enable a judgment to be made as to the likelihood of significant environmental effects is a matter for the authority, subject to review by the court on Wednesbury principles. That follows as a matter of general principle from the nature of the decision-making process in issue. It accords with the authorities to the effect that the actual judgment as to whether a development is likely to have significant environmental effects is subject to review on Wednesbury grounds (see para 7 above). It was the approach taken by Elias J in British Telcommunications Plc v. Gloucester City Council  EWHC Admin 1001, where he held that "[i]t is for the authority to determine whether [an EIA] is needed . It will therefore also be for the authority to decide whether it has sufficient information to make that determination, and its decision can only be upset on Wednesbury grounds" (para 78). Such an approach also accords with the views expressed by Sullivan J in Milne at paras 95 and 108-110 as to the respective roles of the authority and the court in determining whether sufficient information has been provided to meet the EIA requirements at the second stage.
v) In the present case, as considered in greater detail below in the context of the committee's decision that an EIA was not required, the committee had available to it a very large body of information concerning the proposed development and its potential environmental impact. I am satisfied that even though such information was not complete, in that further survey work was still to be carried out, it was reasonably regarded as sufficient to enable a decision to be taken as to the likelihood of significant environmental effects. Much of the material to which I refer below when examining the reasonableness of the decision that an EIA was not required is also relevant to my conclusion that it was reasonable to proceed to a decision on that issue on the basis of the available information. It is unnecessary for me to spell matters out further here.