QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street
B e f o r e :
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|BIRMINGHAM DISTRICT COUNCIL
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|WARWICKSHIRE COUNTY COUNCIL
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Mr Dove QC (instructed by Birmingham City Council Legal Services) appeared on behalf of the Defendant.
Mr Young (instructed by Wragge & Co LLP) appeared on behalf of the Interested Party.
Mr Richards appeared at the Judgement Hand Down.
Hearing Date: 15th December 2009
Crown Copyright ©
Mr Justice Beatson:
"… 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."
Schedule 2 sets different thresholds for different types of development. Urban development projects, including sports stadia, are listed in paragraph 10(a), and the threshold size is a size greater than 0.5 of a hectare.
"Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.
(2) The events referred to in paragraph (1) are -
(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development."
By paragraph 4(5):
"Where a local planning authority or the Secretary of State has to decide … whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
Schedule 3 contains three paragraphs, the first dealing with the characteristics of the development, the second dealing with the location of the development and the third dealing with the characteristics of potential impact. As far as the characteristics of the development are concerned, paragraph 1 provides that:
"The characteristics of development must be considered having regard, in particular, to -
(a) the size of the development;
(b) the cumulation with other development;
(c) the use of natural resources;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of accidents, having regard in particular to substances or technologies used."
"A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.
(2) A request for a screening opinion shall be accompanied by -
(a) a plan sufficient to identify the land;
(a)(a) sufficient information to enable the relevant planning authority to identify any planning permission granted for the development in respect of which a subsequent application has been made.
(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."
By paragraph 5(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."
By paragraph 5(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."
"Decision: an environmental impact assessment is not needed. Justification: schedule 1 test, not schedule 1 development. Schedule 2 test, 10(b) urban development project exceeding 0.5 HA. Sensitive area test: no "sensitive area" designations at site or within near vicinity. Threshold and criteria test: see below. Environmental effect test: with respect to paragraph 33 and annex B of circular 02 99: this major development would not be of more than local significance in terms of its environmental effects (including taking into account the limited number of high spectator number cricket matches per year, a limited number of occasions when floodlights would be in use, and in conjunction with the development underway opposite to the south of Edgbaston Mill. The site location is not particularly environmentally sensitive or vulnerable. The development would not have unusually complex and potentially hazardous environmental effects … Stand: the new stand would have a very similar footprint to those it would replace. It would be taller and provide more floor space, but not to a significant degree. The ground's total seating capacity would increase by 19 per cent from 21,000 spectators to 25,000. However, there are typically only five to ten days per year when the ground is filled to capacity.
Floodlights: permanent floodlights would introduce five structures of significant height. However, the impact of their scale alone on the locality is a matter of amenity and character, not environmental impact.
With respect to the impact of nighttime illumination, the club has used temporary floodlights for at least a decade, and the Inspector for the 2000 appeal found there would be a neutral effect from permanent lighting. The effect of the proposal upon light pollution and ecology will be assessed by the applicant in his specialist technical report, and assessed by the council.
Mixed use development: the commercial floor space, residential and parking developments are proposed on land consisting of the 12 Pershaw Road properties … and tarmac car parking, informal grass area and a practice wicket area. Therefore, the increase in the scale of the development would be significant. In terms of environment, though, I consider likely effect would not be significant. In particular, traffic generation will be considered by the transport assessment. It is noted that traffic movements in the area are high, eg the very busy Pershaw, Bristol and Edgbaston Roads, and so the percentage increase in local traffic the development would generate may not be significant. The site has good public transport links (bus) and is accessible by foot and bicycle for a large population in surrounding residential areas …
Annex A18 also considers whether the types of impact of the new development are of a markedly different nature, or if there is contamination. The types of (environmental) impact from each of the three application elements would not be of a markedly different nature to the existing situation. A baseline ground assessment has been carried out noting the presence of the Elan aqueduct and the adjacent sewage pipe, variable and potentially contaminated main ground, and a potential for hazardous ground gases. A site-specific intrusive ground investigation is recommended. The council's regulatory services will advise in due course on the planning application, along with any necessary conditions to attach to any consent. On the basis of the information submitted thus far, there do not appear to be any unusual or significant land matters which require EIA. The application will be considered by Severn Trent Water, the council's drainage engineer, and the Environment Agency with respect to all drainage matters …"
"The bat survey indicates the buildings associated with the cricket ground do not currently support roosting bats, and demolition of these structures should not result in adverse impact. Additional nocturnal surveys should be completed before demolition takes place, to be secured by condition. The potential for the residential properties on Pershaw Road to support roosting bats is unresolved, partly because not all buildings were inspected internally. Again, additional survey work should be carried out at the first available opportunity …
These mitigation measures should help to limit any adverse impact on the two pipistrelle bat species recorded using the [river corridor] in August 2008. There is also the potential for slower flying bat species to use [the corridor], though the planning ecologist considers they would be unlikely to fly north from Cannon Hill Park because of the reduction in vegetation north of the Edgbaston Road."
The report states that the ecology report makes a number of recommendations which would be secured by condition, including use of native species in landscaping, corridors and stepping stones for wildlife, bat bricks in new buildings, ecologically sensitive management of landscape and clearance of vegetation outside of the bird breeding centre unless otherwise agreed by a qualified ecologist. These state the landscaping issue should be addressed as part of a landscape masterplan.
"… prospective remedial measures are not plainly established and not plainly uncontroversial, then, as it seems to me, the case calls for an EIA."
It is also said that the screening opinion does not ask whether the traffic effects are likely to constitute a significant effect on the environment and that there is no conclusion in relation to contamination as to whether the effects would be significant.
"…there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence. There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion. It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required. An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment, and a planning judgment made."
Pill LJ referred to the decision in R (Jones) v Mansfield District Council  EWCA Civ 1408, and in particular the judgment of Dyson LJ at paragraph 38. Dyson LJ stated that "significance" is not a hard-edged concept, and the assessment of what is significant involves the exercise of judgment. His Lordship recognised and stated that reliance on conditions and mitigation measures could not be a surrogate for EIA procedures, so that an authority cannot conclude that the development is unlikely to have significant effects on the environment, simply because all such effects are likely to be eliminated by measures to be carried out by the developer pursuant to conditions and undertakings. However, the question whether it is likely to have a significant effect is one of degree which calls for the exercise of judgment. Accordingly, remedial measures contemplated by conditions and undertakings "can be taken into account to a certain extent" because of the non-hard-edged status of the concept of "significance".
"The new stand and floodlighting would not have unacceptable effects on residence amenities and local character."
Accordingly, I do not consider that ground three raises an arguable ground for review.
"Knowledge of a resolution to grant permission will often be relevant to whether a person has acted promptly, even though time does not formally run until the grant of permission."
See also the Catt case at paragraph 52.
"If there is a strong case for saying that the permission was ultra vires, then this court might in the circumstances be willing to grant permission to proceed. But, given the delay, it requires a much clearer-cut case than would otherwise have been necessary."
I did consider delay before considering arguability, and so I have not had to form an opinion on this. I have concluded that the case does not raise an arguable point. But had I considered there was an arguable case it certainly would have been relevant in considering the effect of any delay to consider whether the case is a clear-cut one.
Order: Application refused.
Mr Richards: My Lord, so far as the defendant is concerned, the defendant asks for its costs of the acknowledgment of service. As I understand it, that position was agreed between the advocates yesterday, in the eventuality that --
Mr Justice Beatson: The claimant would have got its costs if it had won?
Mr Richards: No, this is for the moment confined to acknowledging service.
Mr Justice Beatson: Acknowledging service, yes, well if that is agreed, we are in difficulty here in that you are of course standing in for Mr Buley as well.
Mr Richards: Yes.
Mr Justice Beatson: So it depends who you are --
Mr Richards: As I understood the difficulty, the email that I have tells me that if permission is refused, it is agreed that costs be dealt with by written submissions.
Mr Justice Beatson: Yes.
Mr Richards: And agreed that legal aid taxation would be applied to the claimant's costs.
Mr Justice Beatson: Yes.
Mr Richards: But as I understand it, it is the cost of the acknowledgment of service rather than anything else. So perhaps --
Mr Justice Beatson: Well, let me ask Mr Wallace, although I am not going to turn him into a solicitor advocate; he can either indicate dissent or he can indicate that that is what was agreed. Right, so at this stage I will say that the defendant is entitled to the costs of -- did it provide me with what they were?
Mr Richards: No, it did not.
Mr Justice Beatson: It did not.
Mr Richards: I checked the acknowledgment of service this morning.
Mr Justice Beatson: That is unusual.
Mr Richards: It is unusual. My learned friends are not here to face the brik-bats.
Mr Justice Beatson: I do not suppose Mr Dove has to condescend to such things.
Mr Richards: No. It may be that that is why they took the precaution of agreeing, or of attempting to agree, yesterday that costs be dealt with by written submissions.
Mr Justice Beatson: Yes.
Mr Richards: Leaving me to persuade your Lordship that, unusually, that is the way that it should be dealt with.
Mr Justice Beatson: Because we took so long yesterday, I said people did not have to come, and it seemed to me simpler -- in many cases in the Administrative Court we deal with costs by written submission. We have Christmas coming up; the reality is that after next Tuesday, they are not going to be dealt with until the New Year.
Mr Richards: Yes.
Mr Justice Beatson: So I would say that if I got submissions by 4 January, and each party can make submissions. If you make submissions perhaps before Christmas, then any submissions in response by 4 January, then I will deal with it as soon as I get back. Does that seem unreasonable, Mr Richards?
Mr Richards: No, my Lord. I am sure that they will be delighted with that.
Mr Justice Beatson: I am content to say that the defendant shall have the costs of its acknowledgment of service, but I cannot make an order now because I do not know what they were. So the written submissions, if not agreed, had better make representations about those.
Mr Richards: The other matter is that I am quite sure that your Lordship will order legal aid taxation for the claimant's costs.
Mr Justice Beatson: Absolutely, no question.
Mr Richards: The other matter that the claimant has asked me to raise, so I do so, is whether or not there can be an expedited copy of the transcript?
Mr Justice Beatson: My clerk can hear that; I have a feeling that has to do with the financial arrangement between the shorthand writers. Let me just see, if we want an expedited transcript, what are we going to get?
Clerk of the Court: If you order a transcript from Merrill Legal Solutions, who are contracted --
Mr Justice Beatson: The problem is that this is all digital; it is modern; and that means it is not done here.
Mr Richards: Right.
Mr Justice Beatson: I think the claimant had better go to the office, and do whatever you can to get it, and I will do whatever I can to expedite it. I will send the message to the office that this is an appropriate case for expedition, because clearly if anything else is going to happen, it better happen quickly. Is that it?
Mr Richards: Yes, I think so, my Lord.
Mr Justice Beatson: Good. Well, thank you very much for coming.
(an unrelated matter in relation to general court procedures is discussed for three minutes until the end of the tape, not a part of this case so not transcribed)