QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BAKER||(CLAIMANT)|
|BATH AND NORTH EAST SOMERSET COUNCIL||(DEFENDANT)|
|HINTON ORGANICS (WESSEX) LTD|
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 J Maurici (instructed by Head of Legal Services, Bath & NE Somerset Council) appeared on behalf of the Defendant
Crown Copyright ©
"Experience has shown that the operation of a similar facility nearby at Charlton Fields [that is the one which was granted permission back in 1999] has given rise to persistent odour complaints resulting in formal action under the Environmental Protection Act 1990 for Statutory Nuisance from odour.
I have no doubt that if this application is approved that complaints will be received and similar action will be inevitable. The existing method of maturation and conditioning of organic waste to produce 'compost' at the Charlton Field Site has been shown to be inadequate in preventing offensive odours as a result of anaerobic decomposition. It appears from the method described in the Risk Assessment supplied with the application that a similar technique is proposed on this site for turning windrows.
In my view this does not represent good practice and has already been demonstrated complaints of odour nuisance are likely to result.
I have also have concerns at the potential for increased odour complaints caused by the transportation of partly rotting material from Charlton Fields to this site at Lime Kiln Farm."
"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4."
It is important to bear in mind that projects which are likely to have significant effects on the environment have to be made subject to such an assessment.
"2. Subject to Article 2(3),[which enables exemptions in exceptional cases, which are not applicable so far as we are concerned] 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."
Annex I contains a list of projects which must be subjected to an environmental impact assessment and, as one would expect, contains a list of relatively major projects which are clearly by their very nature likely to have an effect on the environment.
"Modifications to development projects included in Annex I and projects in Annex 1 undertaken exclusively or mainly from a development and testing of new method or products and not used for more than one year."
"Any change or extension of projects listed in Annex I or Annex II, already authorized, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex 1); -Projects in Annex I, undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than two years."
The latter was the original provision in the Directive.
"Any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex."
"...contribute to the implementation of the obligation arising under the Arhus Convention, in particular by:
(a) providing for public participation in respect of drawing up of certain plans and programmes relating to the environment;
(b) improving the public participation and providing for provisions on access to justice within Council Directives 85/337/ECC and 91/61/EC."
"Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provision of this Directive."
The final paragraph of the Article provides as follows:
"In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures."
The article provides that there can be a possibility of a preliminary review procedure before an administrative authority before the need to go to any court or tribunal.
"... 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 obvious from that that Schedules 1 and 2 are intended to contain the provisions which are in the Annex I, and Annex II to the Directive.
"... development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where-
(a) any part of that development is to be carried out in a sensitive area; or
(b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development..."
There is a list of sensitive areas, including such things as SSSIs, national parks, world heritage site properties and so on. One can understand why location in such areas would be likely to require consideration of whether there was a need for environmental impact assessment. Historically that aspect was included because of a case involving Ireland which had sought to transpose the Directive by reference only to the area or the extent of projects and the court said that that was insufficient because it did not reflect the likely effects of even smaller developments where they took place in a sensitive area.
"4(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that the 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."
Regulation 4(8) is of importance, indeed a central part of Mr Maurici's submissions. It provides that:
"The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of 'Schedule 2 development' is satisfied in relation to that development."
That enables the Secretary of State, notwithstanding that a threshold may not be crossed or even, if crossed, it may not appear that a development is EIA development, to take the view that that is not correct in the circumstances and so to require that an environmental impact assessment be provided.
"A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion."
It may pursue that request to the Secretary of State if necessary. It does not provide that a member of the public they make such request, although clearly a member of the public can raise the issue and can make an application to the Secretary of State if aware that such a process is available.
"Where particulars of a planning application [or of a subsequent application] are placed on Part 1 of the register, the relevant planning authority shall take steps to secure that there is also placed on that Part a copy of any relevant-
(a) screening opinion;
(b) screening direction..."
That, it is said, was not complied with. (b) was not, and the reason why it was not was that it was believed that the regulations did not require that any screening opinion or assessment was needed.
"[Any change to or extension of development listed in this Schedule where such a change or extension meets the thresholds, if any, or description of development set out in this Schedule.]"
That, of course, follows directly the equivalent provision in Annex I of the direction as amended.
"(i) The disposal is by incineration; or
(ii) the area of the development exceeds 0.5 of a hectare; or
(iii) the installation is to be sited within 100 metres of any controlled waters."
"Any change to or extension of development of a description listed in Schedule 1 (other than a change or extension falling within paragraph 21 of that Schedule) or in paragraphs 1 to 12 of Column 1 of this table, where that development is already authorised, executed or in the process of being executed, and the change or extension may have significant adverse affects on the environment..."
In column 2, which contains the criteria, there is, as far as material this:
"(i) In relation to development of a description mentioned in Column 1 of this table, the thresholds and criteria in the corresponding part of Column 2 of this table applied to the change or extension (and not to the development as changed or extended)."
Subparapgraph (ii) contains the same provision relating to a Schedule 1 development. it is the words in parenthesis which it is submitted are not properly within the Schedule because they apply a limitation, which is inconsistent with and contrary to the purpose of, indeed contrary to the language of the Directive and, accordingly, said that I must apply the law as provided for by the Directive in so far as the regulation was not implemented properly.
"In that regard, it is clear from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly..."
In paragraph 113, the court said:
"Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC..."
There are references to various cases including what I suppose is often regarded as the seminal case in this area, Marleasing.
"The requirement for national law to be interpreted in conformity with Community law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it...
115. Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive.
In this instance, the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that the Directive...
Accordingly, it must be concluded that, when hearing a case between individuals, a national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive..."
"Development falling below the thresholds or meeting none of the criteria in the second column of the table does not require EIA. However, there may be circumstances in which such small developments might give rise to significant environmental effects. In those exceptional cases the Secretary of State can use his powers under regulation 4(8)... to direct that EIA is required."
Any comment on that is "yes", but there must be a means whereby the matter gets before the Secretary of State.
"However, in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or approved development. There are occasions where the existence of other development may be particularly relevant in determining whether significant effects are likely, or even where more than one application for development should be considered together to determine whether or not EIA is required."
Then under the heading "Changes or extensions to existing or approved development" this is said:
"Development which comprises a change or extension requires EIA only if the change or extension is likely to have significant environmental effects. This should be considered in the 'light of the general guidance of this Circular and the indicative thresholds in Annex A. However, the significance of any effects must be considered in the context of the existing development. For example, even a small extension to an airport runway might have the effect of allowing larger aircraft to land. Thus significantly increasing the level of noise and emissions. In some cases, repeated small extensions may be made to developments. Quantified thresholds cannot easily deal with this kind of 'incremental' development. In such instances, it should be borne in mind that the thresholds in Annex A are indicative only. An expansion of the same size as a previous expansion will not automatically lead to the same determination on the need for EIA because the environment may have altered since the question was last addressed."
The reference to Annex A sets out the indicative thresholds criteria for identification of Schedule 2 which comes from the regulations.
"Finally, the national court should be reminded that the objective of the legislation cannot be circumvented by the splitting of projects and that failure to take account of their cumulative effect must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of Directive 85/337."
"As stated in paragraph 32 of this judgment, the Court has frequently pointed out that the scope of Directive 85/337 is wide and its purpose very broad. In addition, although the second subparagraph of Article 4(2) of Directive 85/337 confers on Member States a measure of discretion to specify certain types of projects which will be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. In that regard, Directive 85/337 seeks an overall assessment of the environmental impact of projects or of their modification.
43 It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works."
"Lastly, as the Court has already noted with regard to Directive 85/227, the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1)...
46. Therefore, the answer to the first three questions must be that the amended directive must be interpreted as meaning that it provides for environmental impact assessment of refurbishment and improvement projects for urban roads, either where they are projects covered by [relevant points in the] Annex I to the directive, or where they are projects covered by the first ... indent of point 13 thereof, which are likely, by virtue of their nature, size or location and, if appropriate, having regard to their interaction with other projects, to have significant effects on the environment."
The obvious interaction is the effect on the existing project which is to be modified. It seems to me that it is plain beyond any peradventure that it is not appropriate, in the light of the jurisprudence of the court and the purpose behind the Directive, to regard only the modification itself and not the effect on the development as a whole of any such modification to it.
"As regards the cumulative effect of projects, it is to be remembered that the criteria and/or thresholds mentioned in Article 4(2) are designed to facilitate the examination of the actual characteristics exhibited by a given project in order to determine whether it is subject to the requirement to carry out an assessment, and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged on the territory of a Member State."
At paragraph 39 Schiemann LJ stated that from the consideration of the regulations as a whole:
"A number of matters are clear from a consideration of the Regulations as a whole.
1. The planning authority, the Secretary of State and the inspector are not empowered to grant planning permission for an EIA application unless the environmental impact assessment procedures have been gone through...
2. An EIA application is one for planning permission for EIA development.
3. Development will be EIA development.
(a) if the development falls into Schedule 1.
(b) (i) the development falls within column 1 of schedule 2 and.
(ii) it is likely to have significant effects on the environment and
(a) any part of it is to be carried out in a sensitive area as defined or
(ß) the threshold in column 2 is crossed;
(c) the Secretary of State has made a direction under regulation 4(8)."
The method by which the decision as to whether or not it was an EIA application would be reached was either if:
"(a) the applicant or appellant submits a statement to that effect;
(b) the planning authority adopts an opinion to that effect which is not displaced on appeal;
(c) the Secretary of State makes a screening direction..."
In paragraph 43, dealing with the 4(8) point Schiemann LJ said this:
"We further accept that under the Regulations a situation can arise where someone makes to a planning authority or to an inspector empowered to grant planning permission on appeal a plausible submission to the effect that the proposed development is one in respect of which the Secretary of State might, if the matter had been before him, have made a direction under regulation 4(8). We accept that, under the Regulations as they are naturally construed the planning authority and the inspector are in such circumstances empowered to grant planning permission without an EIA first having been carried out.
Like the Judge we conclude that, on the assumption that the Regulations are Community Law compliant, the Inspector in the present case could not have concluded, at the time he was considering the matter, that this development might be EIA development – it did not fall into Schedule 1, it was not in a sensitive area as defined, the threshold was not crossed and the Secretary of State had not made a direction under regulation 4(8).
This conclusion as such is not challenged by Miss Sharpston. Miss Sharpston's written submissions could be read as suggesting that since Regulation 4 (8) envisaged the possibility of a case by case examination therefore the Secretary of State was obliged to make an examination in every case as to whether the application should be subjected to EIA procedures and therefore the Inspector was always bound to refer this question to the Secretary of State. We reject this submission as manifestly unsustainable and indeed Miss Sharpston modified it in her oral submission. In those she submitted that, bearing in mind the Community Law background, Regulations 9(2) ought to be construed so as to impose upon an inspector a duty to refer to the Secretary of State every application for planning permission in respect of which a plausible submission has been made that the Secretary of State might make a Regulation 4(8) direction."
That the court rejected.