QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
|THE QUEEN ON THE APPLICATION OF WARLEY||Claimant|
|WEALDEN DISTRICT COUNCIL||Defendant|
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Mr M Reed (instructed by Sharpe Pritchard) appeared on behalf of the Defendant
Crown Copyright ©
"...For the 'erection of nine static columns with attached floodlights alongside Court numbers 1 and 2 only' at Wadhurst Tennis Club Sparrows Green Recreation Ground, South View Road, Sparrows Green, Wadhurst. It was reported to the meeting of the Council Planning Sub-Committee North on 29 May 2008 ... which resolved to grant full planning permission following receipt of an officer's report and an update recommending that planning permission be refused."
"When I considered the status of the development proposed by the planning application in 2008 I had regard to the fact that the application site was within Sparrows Green recreation ground, owned by Wadhurst Parish Council with the tennis courts and changing rooms building let to the Wadhurst Tennis Club and the planning history of the site showed that outline planning permission was given in 1997 for the replacement of existing changing rooms and public toilets with a new pavilion incorporating new changing rooms, canteen for soft refreshments during and after matches, provision of 4 tennis courts, cycle track, adventure playground, new vehicular access and associated car and disabled parking in the recreation land. Reserved matters approval for this development was issued on 6 October 1999."
"11. The proposal in 2008 was for the erection of nine columns with floodlights. Although it was immediately clear that the impact of floodlighting on the area of outstanding natural beauty in which it was located and on the residential amenity were going to be a significant material planning considerations [sic], I took the view that the development did not fall within either schedule 1 or schedule 2 to the EIA regulations 1999 [I will return to those regulations in due course].
"12. It has been suggested by the Claimants ... that the development should have been regarded as falling under either paragraph 10(b) (urban development projects) or paragraph 13 (Any change to existing category development) of Schedule 2. I would confirm that I considered the application when it was submitted in 2008 that I considered that neither the application proposals, nor the existing courts, fell within those categories.
"13. My reasoning for this conclusion was that by reference to the list of developments within Schedule 1 of the 1999 Regulations, it is very clear that minor works are excluded from the major projects listed. [I interpose to say that it is common ground before me that there is no issue as to the applicability of Schedule 1]. Turning to the issues regarding Schedule 2 alleged by the Claimant, I formed the view that the lighting column project could not be considered under paragraph 10(b), urban development projects, which includes the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas. In my opinion at the time, I could not identify any reasonable comparison between the nature of a simple lighting column proposal before me with the far more substantive physical forms of urban development which are clearly embraced within 10(b). I was aware of the lighting impact issue, but was not of the opinion that this characteristic meant such minor development would fall within class 10(b). The fact that thresholds on the size of listed categories of development are not applicable within sensitive areas (like the AONB) was known to me, but where development does not fall within the schedule, I considered it would not require screening for an EIA.
"14. I now consider the allegation that the development should otherwise be considered as Schedule 2 paragraph (13) development, that is, a change to an existing category of development already listed in Schedule 1 or 2. I consciously took one step back to consider the existing permitted use/development of the site (before the floodlight application). Noting that this was already recreational ground when the hard surfaced courts were formed, I was convinced in my view that the tennis courts on the land were not an 'urban development project'. They simply did not square with the category 'character' and limitations. It is also relevant to note that recreational development of land has its own heading in Schedule 2 and could have been included in paragraph 12 (Tourism and leisure) if relevant. As a result of the above, it is clearly, therefore, outside the category of an 'urban development project'. For the avoidance of doubt, I am also clear in my view that these established tennis courts do not fall within Schedule 2 paragraph (12) development either, as there is no relevant entry within the list of leisure developments."
"As stated in my first witness statement, I considered that the proposal for lighting the two tennis courts did not fall within either Schedule 1 or Schedule 2 to the EIA Regulations 1999. My assessment at that stage was reached on the basis of the 15 column scheme which were in a similar location to the subsequent 9 column scheme ie around the perimeter of the two existing tennis courts."
And paragraph 7, he goes on to say:
"The differences between a scheme for 15 or 9 columns are minor as the purpose of both schemes is to create the same defined illuminated area or box of light over the two tennis courts giving adequate illumination in which to play tennis."
During the course of paragraph 9 of his statement, he states:
"I took the view that, when the amended 9 column scheme was submitted, that as with the 15 column scheme it also fell outside the scope of Schedule 1 or 2 of the EIA Regulations."
"In paragraph 13 of my first statement ... I refer to the 'lighting column project' and in paragraph 14 ... I refer to the 'tennis courts on the land not being an urban development project'. My comments have to be seen in the context of that fact that the lighting column application site is that land shown by dark edging (actually red on the original) on the block plan submitted with the planning application ... That shows not only the tennis courts but the pavilion/changing rooms and the car park/access and the intervening path which links them. My reference to the lighting column project and the tennis courts should be taken as including those areas of land within the boundary of the application site which was what my decision relating to whether the development should be considered as Schedule 2 development under paragraphs 10(b) and the 13 was based on. I did not have particular regard when considering paragraph 13 to the adventure playground or the open play area as those areas have discrete small scale uses and are not used by the tennis club and are unlikely to be used by children when it is sufficiently dark to necessitate the use of lighting to play tennis. I did not regard them as part of the planning unit and the changes proposed in the application did not in any way relate to these small scale facilities by either distance or function."
"(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D) 'the adequacy of the reasons is itself made a condition of the legality of the decision', only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons."
"(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
"(a) Whether the new reasons are consistent with the original reasons.
"(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
"(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).
"(d) The delay before the later reasons were put forward.
"(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly."
"Referring to the ILE guidance notes [which is a reference to the Institution of Lighting Engineers Guidance in 2005] these recommend that a site is classified according to the prevailing lighting conditions in the immediate surrounds. These classifications are as follows..."
"5.1. The 6m lighting solution proposed is appropriate for its application and as far as reasonably practicable it minimises the impacts of lighting in this sensitive area. However due to the level difference between the courts and the neighbouring properties, views up into floodlights will inevitably occur from some properties. Shielding the rear of the properties closest to neighbouring properties will reduce this impact to some extent, however the extent of shielding is limited, as the required light output for the intended purpose needs to be maintained.
"5.2. In breaking down the lighting impacts into different types, we found that several receptors adjacent to the site would experience a Severe Adverse impact in terms of 'Light Presence' which refers to the visual intrusion of lit elements within the nightscape. For all other types of impact, including 'Light Trespass', 'Glare', and 'Local Sky Glow', we assessed the impact as Slight Adverse or Negligible.
"5.3. Controlled hours of use will mitigate impacts to some extent.
"5.4. Planning Conditions: In any installation such as this there is a significant likelihood that a particular source could cause glare and therefore a nuisance. Even with the best design it is not always possible to guarantee that this will be completely eliminated, and furthermore wind pressure can misalign a floodlight if it happens that the fixings were not properly tightened in the first place. Therefore it is strongly recommended that the Council includes a Planning Condition along the following lines:
"At any time during the first 12 months of operation, the Council shall be entitled to require the applicant to adjust or shield any light source that is deemed to be a nuisance as far as reasonably practicable."
"1.3. For the avoidance of doubt, the scheme assessed used columns that placed the floodlights at a height of 6 metres above the playing surface with the lanterns at zero degrees tilt. The type of floodlight chosen used horizontal flat glass technology. This is consistent with the parameters used in the applicant's lighting calculations.
"1.4. The supplementary information submitted does not alter the proposals in any form and it is the purpose of this supplementary report to justify and explain further the reasoning for the original findings and address the comments made by Wadhurst Tennis Club and LTL Contracts."
"2.3. The assessment of light presence as Severe Adverse has also been questioned. The definition of this effect is the visibility of lit elements (both sources and illuminated surfaces), affecting the character of the nightscape. The applicant argues that although the site is within the AONB, it is bordered by built environment and hence should not be classified as being within Environmental Zone E1 and thus our classification is onerous. We disagree, as the adjacent built environment is predominantly dark, being free even of street lighting. The introduction of high intensity sports lighting will clearly be a substantial change.
"2.4. Light presence is a form of light pollution assessed in terms of environmental zones and the existing elements of the lit environment. The applicant is uncertain that light presence could even be categorised as Severe Adverse, however, we disagree. The floodlighting would be very prominently visible in the near (and middle) distance for nearby residential properties. The views are at the moment almost completely dark at night."
"3.1. Capita Symonds stand by their original assessment that the effect of the proposed floodlighting in terms of glare would be Slight Adverse and light presence would be Severe Adverse for some receptors.
"3.2. It should be noted that the individual perception of these effects will vary. It is not our intention to determine whether such effects are acceptable or not. It is fair to say that glare and light trespass tend to be more emotive than sky glow and light presence and thus the importance of these effects need to be judged accordingly.
"3.3. The effects need to be balanced against the advantages this scheme will bring to players and the community."
"1. The application site lies within an environmentally sensitive area within the High Weald Area of Outstanding Natural Beauty and outside the development boundary for Wadhurst where the Council applies planning policies that strictly control new development. It is considered that the proposed floodlighting would cause significant and unjustified harm to the character and appearance of the area and would have an undesirable visual impact on the locality, detrimental to its considerable rural and visual amenities, that would neither conserve or enhance the natural beauty and character of this area. The proposals are contrary therefore to [various policies in the development plan which are there referred to, as well as Government guidance on the subject].
"2. The proposals would have an unacceptable impact on the residential and visual amenities of dwellings in the vicinity of the site. Although mitigation measures have been incorporated within the scheme, some residential properties will inevitably experience adverse impacts given the juxtaposition of the dwellings with the tennis courts. The proposals are contrary therefore to [relevant parts of the development plan and advice]."
"The relative levels of the tennis courts and the nearest residential dwellings reduces the effect of mitigating planting. As previously reported, it is evident when viewing the site from above ground level windows of several neighbouring dwellings that the proposed lighting would have a seriously detrimental impact on these dwellings that could not be satisfactorily mitigated. This view is confirmed by the independent lighting consultants who state that even with the hedge and club house to provide some screening some properties will inevitably suffer adversely from Light Presence and Glare."
"The court lighting hereby approved shall only be on when the courts are in use for playing and/or coaching tennis during the months of September to April inclusive and they shall not be operated after 21:00 hours or before 08:00 hours on any day without the prior consent in writing of the Local Planning Authority."
"The columns and floodlights hereby approved shall be erected in accordance with the approved specifications and plans and adjusted at the time of installation so as to minimise any overspill of light to the surrounding area. UV filters shall be fitted to each floodlight and baffle fittings shall be installed on those floodlights sited around the outside of both courts at the time of installation and retained and maintained thereafter. At any time during the first 12 months of operation, the Local Planning Authority shall require the applicant to adjust or shield any light source that is deemed to be a nuisance as far as reasonably practicable and thereafter the adjustment/shield shall be retained and maintained."
"The proposed floodlighting would enable the use of these high quality tennis courts throughout the year. The potential harm on the character and appearance of the High Weald Area of Outstanding Natural Beauty (AONB) has been carefully weighed against the benefits that would accrue from extended use of the facilities. It is considered that the scheme has been designed to a high standard to mitigate any potentially negative impacts either on local residents, ecological interests in the locality or the character of the AONB. It is considered that the amended application has satisfactorily considered and addressed biodiversity concerns following the quashing of the original planning permission after judicial review. Wider environmental considerations have been taken into account and the submitted information is considered proportionate to the proposed development.
"Subject to the conditions imposed on the decision notice, the provision of floodlighting would not have a significant impact on the amenities of local residents to warrant refusal of the application and there were no other material considerations considered to be sufficient to justify a decision other than to grant permission."
"The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so."
"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."
"(a) An application for planning permission for Schedule 2 development; or
"(b) A subsequent application in respect of Schedule 2 development."
"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."
"(a) any change to or extension of a description listed 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 effects on the environment."
"The Court has stated on numerous occasions that the scope of Directive 85/337 and that of the amended directive is very wide ... It would, therefore, be contrary to the very purpose of the amended directive to allow any urban road project to fall outside its scope solely on the ground that the directive does not expressly mention among the projects listed in Annexes I and II those concerning that kind of road."
Relevant domestic authorities on the EIA issue
"8. In the present case, the only serious contender for a category of Schedule 2 development under which the application might fall is paragraph 10(b) of the Schedule: infrastructure projects that are urban development projects. These are very wide and to some extent obscure expressions, and a good deal of legitimate disagreement will be involved in applying them to the facts of any given case. That emboldened Lewisham to argue, and the judge to agree, that such a determination on the part of the local authority could only be challenged if it were Wednesbury unreasonable. I do not agree. However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgement. Rather, it involves the application of the authority's understanding of the meaning in law of the expression used in the Regulation. If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error: and in determining the meaning of the statutory expressions the concept of reasonable judgement as embodied in Wednesbury simply has no part to play. That, however, is not the end of the matter. The meaning in law may itself be sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions may be legitimately available. That approach to decision-making was emphasised by Lord Mustill, speaking for the House of Lords, in R v Monopolies Commission ex p South Yorkshire Transport Ltd  1 WLR 23 at p 32G, when he said that there may be cases where the criterion, upon which in law the decision has to be made,
"'may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.'
"9. That is the decision as to whether the development is a Schedule 2 development. If the authority concludes that it is such, it then has to go on and decide whether that Schedule 2 development is also an EIA development, by determining whether it is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. That is an enquiry of a nature to which the Wednesbury principle does apply..."
"13. The flaw in this approach is that I cannot agree with the construction that Lewisham sought to put upon its own decision. It seems to me entirely plain that Miss Sterry, and the author of the report to council, were deciding and reporting that storage and distribution as a category did not fall within paragraph 10(b). I cannot think that that can be right as a matter of law and, although the point was far from conceded, Mr Maurici's strenuous attempts to support a different analysis at least indicated the importance of the issue. 'Infrastructure project' and 'urban development project' are terms of wide ambit, perhaps more easily understood by those versed in planning policy than by mere lawyers, and attracting the observations of Lord Mustill quoted in paragraph 8 above. But the examples of urban development projects set out in paragraph 10(b) of the Regulation demonstrate that in this instance 'infrastructure' goes wider, indeed far wider, than the normal understanding, as quoted to us from the Shorter Oxford Dictionary, of 'the installations and services (power stations, sewers, roads, housing, etc) regarded as the economic foundations of a country'. I am unable to accept that a storage and distribution facility (particularly when, as in the present case, it provides services to business and the community at large, and is not simply a private operation), however large and extensive, can never be reasonably regarded as part of the infrastructure as understood in the Regulations..."
"20. A planning authority when determining whether a development falls within the description and limits set out in Schedule 2 should heed the exhortation of the European Court in the Kraaijeveld Case (C-72/95, 1-5403) where the Court considered the interpretation of annexe II to the Directive.
"21. In paragraph 31 the Court said:
"'The wording of the directive indicates that it has a wide scope and a broad purpose. That observation alone should suffice to interpret point 10(e) of Annex II to the directive as encompassing all works for retaining water and preventing floods - and therefore dyke works - even if not all the linguistic versions are so precise.'
"24. The words 'including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas' are not words of limitation but of description which emphasises the wide ambit encompassed by 'urban development projects'."
"The main issue in this appeal is whether Herefordshire Council was entitled to conclude that development consisting of the erection of polytunnels for soft fruit production on existing farmland in an Area of Outstanding Natural Beauty ... in the Wye Valley did not fall within the description 'projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes' in paragraph 1(a) of Schedule 2 to [the 1999 Regulations] and did not therefore require an environmental impact assessment ... pursuant to those regulations."
"34. Responsibility for determining under the 1999 Regulations whether a development for which planning permission is sought is an EIA development, including a decision on whether it falls within paragraph 1(a) of Schedule 2 ... lies with the local planning authority. The court's role is supervisory, to check that the decision was taken lawfully. The court must not take upon itself the function of primary decision-maker.
"35. In determining the lawfulness of the council's decision in this case, the court must apply the approach laid down in Goodman ... I think that all parties were agreed on that, but it is in any event plainly the correct course. The description in paragraph 1(a) of Schedule 2 is inherently imprecise. The degree of imprecision is underlined by the Commission's guidance ... which effectively acknowledges that there is legitimate scope for differences of approach as between different Member States and even as between different authorities in a single Member State. It is therefore necessary to ask, first, whether the council correctly understood the meaning of the expression and, secondly, whether in applying the expression to the facts it reached a conclusion that was open to a rational decision-maker.
"37. Considerable caution is required when considering the meaning of "uncultivated land or semi-natural areas". One has to accept the inherent imprecision of the expression and avoid glosses or attempted re-definition in pursuit of a spurious precision..."
"4. Throughout these proceedings the Respondent's position has been that demolition does not fall within the definition of project in Article 1.2 of the Directive, and that even if it fell within that definition, demolition was not one of the projects listed in Annex II. In the Respondent's view, demolition is not within the scope of the Directive unless it is carried out as part of a project that does fall within Annex I or Annex II to the Directive."
"... readily accepted the proposition that the Directive must be interpreted in a purposive manner. If it is accepted that works are capable of having significant effects on the environment, the definition of 'project' in Article 1.2 should, if possible, be construed so as to include, rather than exclude, such works. Applying this approach to the first limb of the definition in Article 1.2, it seems to me that the execution of demolition works falls naturally within 'the execution of ...other...schemes...'. Demolition works are the antithesis of construction works, but the first limb of the definition is not confined to 'construction works', it expressly includes 'other schemes', ie schemes which are not construction works."
"If demolition is capable of being a 'scheme' for the purposes of Article 1.2, it is also capable of being an 'urban development project' within paragraph 10(b) of Annex II, even though the project comprises only demolition and restoration of the site in accordance with a notice..."
The EIA issue
"I could not identify any reasonable comparison between the nature of a simple lighting column proposal before me with the far more substantive physical forms of urban development which are clearly embraced within 10(b)."
"They simply did not square with the category 'character' and limitations."
"It is also relevant to note that recreational development of land has its own heading in Schedule 2 and could have been included in paragraph 12 (Tourism and leisure) if relevant. As a result of the above, it is clearly, therefore, outside the category of an urban development project."
"For the avoidance of doubt, I am also clear in my view that these established tennis courts do not fall within Schedule 2 paragraph (12) development either, as there is no relevant entry within the list of leisure developments."
"Noting that this was already recreational land when the hard surfaced tennis courts were formed, I was convinced in my view that the tennis courts on the land were not an 'urban development project'."
"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."
"It seems to me that that is clearly not only consistent with but applies the approach that it is necessary to look at the effect of any modification or modifications on the project, or on the development, and to see whether the whole, as modified, has or is likely to have other significant effects which need to be taken into account and may require an environmental impact assessment, albeit they do not fall themselves within the criteria which have been adopted by the Member State."
"Condition 3 on its face envisages that the floodlights may cause a nuisance -- indeed action under the condition is only possible in such an event. Since the condition must have been considered necessary by the defendant, it must follow that the defendant accepted that there was a prospect of a nuisance by reason of light. Yet such a conclusion is inconsistent with the defendant's position in these proceedings that there would be no significant impacts on residential amenity."
"...The condition is limited in time to 12 months and in scope by the requirement that any measures required of the defendant be 'reasonably practicable'. There is no evidence ... that the defendant refers to which assesses the extent to which it will be reasonably practicable to mitigate any nuisance which may arise or which demonstrates that the defendant in fact considered this matter ... No reasonable decision maker [in other words invoking the principle of irrationality] would have granted planning permission subject to this condition without a thorough assessment of the extent to which it would be effective in preventing light nuisance from arising."
"'The food store hereby approved shall not exceed the following floor space allocations (maxima) [...] unless otherwise agreed in writing with the Local Planning Authority.'"
"It makes hopelessly uncertain what is permitted. It enables development not applied for, assessed or permitted to occur. It side steps the whole of the statutory process for the grant of permission and the variation of conditions..."
"... While the tailpiece in the condition in question could be applied in that way, it contains no words purporting to limit its application. The tailpiece on its face does enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted and it enables it to be created by means wholly outside any statutory process. It undermines the effect of specifying floorspace limits. I do not consider that a public document such as a planning permission should contain such a provision. It is unreasonable that the public should be expected to know that the plain meaning of the tailpiece was so radically qualified by Henry Boot and Lever (Finance), nor should it be expected to know that giving effect to its apparent scope would be unlawful for the reasons given by Mr Holgate in relation to Henry Boot in particular. The consequence is that unless the tailpiece can be excised and quashed, the condition is unlawful and so too is the planning permission. No question of severing the condition from the planning permission could arise. The floor space limits are of central importance."
"Indeed, the Applicant submits that beyond this sum a public law claim is likely to be too expensive for most, if not all, individuals. The Applicant's base costs to trial are estimated to be £20,000 plus VAT..."
"[It was] indicated that the evidence presented by the Claimant (which was given by the same solicitors acting in this case for the Claimant) as to the costs of a one-day straightforward judicial review is £15,000 plus VAT..."
"We note that the Judge has limited the Defendant's cost liability towards our client's costs to £15,000. We will assume, unless we hear anything to the contrary, that this sum is plus VAT."
"We refer to the order of Mr Justice Lindblom dated 14 February 2011, a copy of which we enclose... We would point out that we are considering the directions and the Protected Costs Order with our client."