QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| John Gillespie
|- and -
|First Secretary of State
|Bellway Urban Renewal Southern
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)
Tim Mould (instructed by The Treasury Solicitor) for the Defendant
Keith Lindblom QC and James Pereira (instructed by Masons) for the Interested Party
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."
"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. Certain aspects of such investigations, such as drilling boreholes, may require separate planning permission or approval by other statutory authorities. Planning permission may need to include conditions, for example requiring certain remedial measures to be carried out.
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 the 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.
10. If the information provided by the applicant is insufficient to enable the authority to determine the application, the authority may request further information. Should the degree of contamination be such that remedial action is required to safeguard future users or occupiers of the site or neighbouring land, or protect any buildings or services from the hazards, then planning permission may be granted subject to conditions specifying the measures to be carried out."
"73. Land formerly used for industrial purposes or for waste disposal can be contaminated by substances that pose immediate or long-term hazards to the environment or to health, or which may damage any buildings erected on such sites. Contaminants may also escape from the site to cause air and water pollution and pollution of nearby land; the emission of landfill gas may be particularly hazardous. In these circumstances, appropriate conditions may be imposed in order to ensure that the development proposed for the site will not expose future users or occupiers of the site, any buildings and services, or the wider environment to risks associated with the contaminants present. However, local planning authorities should base any such conditions on a site-specific assessment of the environmental risks which might affect, or be affected by, the particular proposed development.
74. If it is known or strongly suspected that a 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 remedial action will normally be required before the application can be determined by the planning authority. Any subsequent planning permission may need to include planning conditions requiring certain remedial measures to be carried out …."
"6.2 The scheme proposed for the site will seek to address the presence of contamination by reference to the current government guidance on contaminated land. The protocol to be adopted will identify pollutant linkages i.e. those combinations of contaminant source, sensitive receptor and pathways by which the contaminant may reach the receptor in quantities capable of causing harm.
6.3 The remediation works will be designed to prevent pollutant linkages from existing and remove the potential for new linkages to be caused ….
6.4 The remediation scheme includes several elements:
(i) in-situ treatment of the most heavily contaminated soils associated with the underground tanks;
(ii) provision of vertical barriers within the site to isolate the highly contaminated soils;
(iii) provision of vertical barriers around the periphery of the site to prevent contaminants migrating from or to the site;
(iv) provision of clean validated soils covers to soft areas of the finished development; and
(v) protection of infrastructure from the effects of remaining contaminants."
"Whilst the strategy proposed may be acceptable, it is considered that further assurance is required, prior to permission, to ensure that the remediation proposed is satisfactory."
"The overall objective of the decontamination and redevelopment of the site will be to create a finished site which does not constitute a contaminated site within the meaning of the Draft Statutory Guidance of September 1999. The remediation works will be designed to prevent significant pollutant linkages from existing and remove the potential for new significant linkages to be caused. The designs must ensure that no significant pollutant linkages occur during the lifetime of the structure. This objective can be achieved in an effective manner by the methods set out below in broad detail. Specific details of operations will be developed in co-operation with the regulatory authorities. The following paragraphs set out the framework which will be followed in the design and implementation of the reclamation scheme."
"9.3 The difficulty in regenerating the site lies in nature of the previous use of the site, which as demonstrated by Mr Edwards, has resulted in extensive contamination of the land. This presents a considerable barrier to ensuring the re-development of the site. Remediation, in my view, would therefore represent a considerable planning benefit in its own right, as recognised by government guidance …
9.4 Accordingly, any re-development proposals must account for this additional, and abnormal, requirement. However, the remediation of the site is unlikely to occur without a realistic and implementable development proposal. The proposal of Bellway Homes therefore, presents the opportunity of achieving an important planning and community benefit of securing the effective remediation of a contaminated site ….
9.5. The Council has not objected, in principle, to the approach proposed, or explained, by Mr Edwards. Officers have now also agreed that this matter can be satisfactorily addressed by way of condition …. This approach is consistent with PPG23 ….
9.9 Mr Edwards demonstrates that the proposal strategy and methodology meet these tests. The imposition of appropriate conditions, as advised by government guidance, will safeguard the Council's position and will enable the council to maintain control over the process whilst being able to respond to any change in forecast conditions. Most importantly, this approach would prohibit any occupations until remediation has been satisfactorily completed …."
"220.127.116.11 Because of its previous use the site is undoubtedly contaminated to a significant degree. However the type and extent of the contamination is not fully known in that survey work that has been undertaken is undoubtedly of a preliminary nature. This survey however remains incomplete with the western half of the site, which is possibly less contaminated, being subject to a less extensive investigation due to problems of access and the presence of British Gas plant and equipment.
18.104.22.168 The Council has been anxious to have as much survey work as possible available to it because the results are likely to influence both the layout and details of the proposal and, of course, the results may cast further light on costs of the development and disposition of uses within the site. At a meeting on 20th September 1999, Sue Bridge on behalf of the Appellant advised me that further ground investigation could not be undertaken until the gasworks had been demolished …. In the light of this statement the Council would accept the imposition of a condition requiring further contamination survey work to be undertaken after determination. However, as indicated below, the Council is concerned that the results could have an influence as to the extent to which houses with gardens could and should be provided."
"14.5 Because of its previous use, the site is obviously contaminated to a significant degree. The type and extent of the contamination is not fully known at this stage. I am satisfied that sufficient basic information has been made available to the appellants to enable them and the Council to conclude on the most effective way to proceed with developing a programme for decontamination of the site whilst further submissions required by planning conditions are being prepared, subject to planning permission being granted. Further investigation such as a risk assessment would be undertaken prior to deciding on the most appropriate method of remediation. Environmental Impact Asssessment was not required for the proposal as provided for under the appropriate regulations. The Council considers that the imposition of an appropriately worded condition would ensure that the issue of contamination would be properly addressed. The Environment Agency accepts that contamination could be dealt with by planning condition.
14.6 PPG23 supports remediation strategies which address contamination in situ. Therefore, the tar tanks and the most contaminated land may well remain on the site depending what is found in the more detailed investigations. Nevertheless, despite the concerns of the Save Stepney Campaign (SSC) and other local residents, decontamination procedures would be consistent with government policy in PPG23. I accept that the planning conditions as agreed between the appellants and the Council would provide for an appropriate remediation strategy for the site if planning permission were to be granted."
"14.16 There are heavily weighted factors in favour of the proposed development. It would represent an opportunity to build houses in a brownfield site in an area of inner London where more homes are needed and would help to meet the government's target for brownfield housing in the South East of England. A significant proportion of the units would be affordable housing and accommodation for key workers. Community employment training accommodation and a health centre would be provided consistent with the approved development brief for the site. Contaminated land would be remediated and brought back into beneficial use."
"9. … The Secretary of State notes that the Inspector considered whether the development required an environmental assessment and he concluded that it did not (IR 14.5). The Secretary of State considers that the development would be unlikely to have significant effects on the environment and thus, pursuant to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, the development does not require an environmental assessment. The Secretary of State also agrees with the Inspector's conclusion that the scheme would provide the opportunity to bring this contaminated site back into beneficial use (IR 14.16) and he concurs with the Inspector's view that the decontamination procedures would be consistent with government policy on Planning and Pollution Control in PPG23 (IR 14.6)."
"2.7 As the inspector and the Secretary of State have both decided that the Stepney Gasworks site does not require an independent environmental and health impact assessment, as requested by the SSC and several other local organisations; then, at the very least, the full investigation of the Commercial Gas Company borehole must be added to condition VI, as the borehole is a potential threat to the chalk aquifer and the two licensed boreholes in Mile End Park."
"Our second concern is related, and is the decision that the development does not require an environmental assessment. No reasons are given for this conclusion either by the Secretary of State or the inspector. On the basis that the project constitutes an urban development project within Schedule 2 of the 1988 Regulations, the question is whether it is likely to have significant environmental effects. The possibility of failure of any remediation measures, resulting in environmental pollution and risks to local residents, involves significant effects that have not been subject to environmental assessment.
The interim decision letter acknowledges, in imposing proposed Condition VI, that a detailed site investigation is needed to establish the nature, extent and degree of contamination present on site, and that a scheme for remediation needs to be prepared and approved, including measures to minimise risk to the public, the environment and prevention of ground and surface water pollution during the remediation .… In our view, until such time as the detailed investigation and scheme have been completed, the Secretary of State is simply not in a position to conclude that there are no likely significant environmental effects ….
It is not acceptable to grant planning permission and leave these issues to be resolved by way of condition. This would not comply with the requirements of the 1988 Regulations since development consent will have been given without environmental assessment, and the processes for approval of any remediation scheme under proposed Condition VI clearly do not comply with the requirements for public participation inherent in the EIA process …."
"The Secretary of State considers that there is sufficient information available to come to a view that the proposed development is unlikely to cause significant effect on the environment and therefore an environmental assessment is not required having regard to the Town & Country Planning (Assessment of Environment Effects) Regulations 1988. The Secretary of State is satisfied that the remediation work required can be dealt with by condition and that condition VI sets out the procedure to be followed by the developer and does not indicate the likelihood of significant effects on the environment."
"Before any development commences a detailed site investigation shall be undertaken to establish the nature, extent and degree of the contamination present on site. The scope, method and extent of this site investigation shall be submitted to and approved by the local planning authority prior to the commencement of the site investigation. This site investigation work shall also propose a scheme for remediation of this contamination, including measures to be taken to minimise risk to the public, the environment and prevention of contaminated ground and surface water from escaping during the remediation, together with provisions for monitoring during and after remediation. The detailed site investigation shall be submitted to and approved in writing by the local planning authority prior to the commencement of the remediation works on site and no remediation or development works on site shall proceed other than in accordance with the approved measures."
The case for the claimant
"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 …."
"90. If a particular kind of project, such as an industrial estate development project (or perhaps an urban development project) is, by its very nature, not fixed at the outset, but is expected to evolve over a number of years depending on market demand, there is no reason why a 'description of the project' for the purposes of the directive should not recognise that reality. What is important is that the environmental assessment process should then take full account at the outset of the implications for the environment of this need for an element of flexibility. … It is for the authority responsible for granting the development consent … to decide whether the difficulties and uncertainties are such that the proposed degree of flexibility is not acceptable in terms of its potential effect on the environment. ….
95. This does not give developers an excuse to provide inadequate descriptions of their projects. It will be for the authority responsible for issuing the development consent to decide whether it is satisfied, given the nature of the project in question, that it has 'full knowledge' of its likely significant effects on the environment. If it considers that an unnecessary degree of flexibility, and hence uncertainty as to the likely significant environmental effects, has been incorporated into the description of the development, then it can require more detail, or refuse consent. ….
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'. …."
"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, 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."
"73. … Can [the authority] 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 is 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.
74. In this case it is clear that there would be potentially highly significant effects on the archaeology, unless measures are directed to eliminate them. Accordingly, [the officer] erred in law in taking these measures into account when deciding that no significant effect was likely …."
"45. Whilst each case will no doubt turn upon its own particular facts, and whilst it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development, the underlying purpose of the Regulations in implementing the Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures ….
51. … In so far as one can discern the Council's reasoning, it was erroneous on the two grounds set out above: it was no answer to the need for an EIA to say the information would be supplied in some form in any event [i.e. the first ground, based on Berkeley] and it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects?"
"Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, … the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects."
"14. Since free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community, the existence of a remedy of a judicial nature against any decision of a national authority refusing the benefit of that right is essential in order to secure for the individual effective protection for his right ….
15. Effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general that the court to which the matter is referred may require the competent authority to notify its reasons. But where, as in this case, it is more particularly a question of securing the effective protection of a fundamental right conferred by the Treaty on Community workers, the latter must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in their applying to the courts. Consequently, in such circumstances the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request."
"I reach that conclusion by reference to the legislative framework and also by applying general standards of fairness to the circumstances set out:
(1) No general duty has been established under community law or national law to give reasons for all decisions by competent authorities of member states.
(2) Neither the directive nor the 1988 Regulations expressly require reasons to be given for a decision not to direct an environmental impact assessment.
(3) The applicant's right is not a right to an environmental impact assessment, but to a decision from the Secretary of State as to whether such an assessment is required.
(4) The decision requires an exercise of judgment by the Secretary of State and he is left with a discretion in its exercise. The requirement for a decision is only one part of the procedures provided for planning control and the protection of the environment.
(5) Whether or not there is an environmental impact assessment, the local planning authority, in determining applications for planning permission, must have regard to 'material considerations' (sections 54A and 70 of the 1990 Act), which will include environmental considerations. The applicant had the opportunity to make representations to the local planning authority and the authority were supplied with information on environmental considerations, albeit not in the form specified in the directive and regulations.
(6) The right concerned in the circumstances is removed from the relevant substantive decision, that is the decision whether or not to grant planning permission.
(7) The right conferred is very removed from the fundamental right considered by the ECJ in Heylens.
(8) Reasons for the decision were given, albeit in summary form: the development proposed 'would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location'.
(9) Community law and national law permit reference to practical considerations and it is difficult to identify a more elaborate form of reasoning that could sensibly prove the negative averment that an environmental assessment is not required. Mr Gordon did not suggest ways in which the Secretary of State's reasons could usefully be elaborated.
(10) Further gratuitous comment of a negative kind by the Secretary of State could prejudice the local authority decision maker against the environmental interest that it is the object of the applicant to protect.
(11) There is no bar to a challenge by way of judicial review and considerable information is available to an applicant who might seek to challenge the decision as irrational."
The case for the Secretary of State
The case for Bellway
Conclusions on ground 1
i) 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 10 above). It was the approach taken by Elias J in British Telecommunications 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.
ii) The Secretary of State had a large amount of information as to conditions on the site and as to the principles of the remediation strategy. He was reasonably entitled to regard that information as sufficient for the purpose.
iii) The main area of uncertainty related to the nature and extent of contamination under the existing structures, but for obvious reasons it was not practicable to obtain that information unless and until development commenced and the structures were taken down. Accordingly the lack of that further information did not make it unreasonable to proceed to a decision. To hold otherwise would be to allow the very existence of the EIA regime to frustrate the development at the outset, which is plainly not the intention. An analogous point was made by Sullivan J in para 94 of Milne, in relation to the stage where an EIA is required: "[t]he directive seeks to ensure that as much knowledge as can reasonably be obtained, given the nature of the project, about its likely significant effect on the environment is available to the decision taker. It is not intended to prevent the development of some projects because, by their very nature, 'full knowledge' (in the sense of an abstract threshold level of detail) is not available at the outset." Moreover 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 applies only at that later, not at the earlier stage of deciding whether an EIA is required at all.
Conclusions on ground 2