England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		31 May 2012

1. THE DEPUTY JUDGE: This is the renewed application for permission to apply for judicial review brought by Mr Michael Evans against the Secretary of State (the defendant). There are two interested parties Babergh District Council and Persimmon Homes Anglia Limited.
2. The claimant is a local resident who lives near the site which is the subject of this dispute and he is chairman of the Cornard Tye Residents' Association. The identity of the defendant is obvious. The district council is the relevant local council and Persimmon Homes a proposed developer.
3. The defendant is obliged under Regulation 6.4 of the EIA Regulations to make a screening direction within three weeks of the date of receipt of a request. In the present case, the Secretary of State's screening direction was delegated to a senior planning manager known as the screener and the challenge relates to what happened after that.
4. The claimant claims that the defendant has acted unlawfully by failing to comply with it is EIA obligations in a number of respects. Its said that the screening direction, the negative screening direction, is flawed by fundamental errors of fact. It is said that the screening direction is perverse and has come to an illogical conclusion as to the impact of the landscape change proposed in the development. It is said that the screener has misunderstood English Heritage advice and has failed properly to have regard to the significant adverse effect the accumulation of the development will have on the special landscape area and on the setting of a grade 1 listed building, Abbas Hall. It is said that the conclusion that there will be no significant impact in relation to the increased traffic and highways work that will be required is perverse and that the screening direction is flawed by the screener's failure to have regard to commission guidance as to what constitutes significant effect. It is said that the screening direction is flawed because the screener failed to apply the Waddenzee test as to the meaning of "likely".
5. It is common ground that ground six cannot succeed unless the court holds that the law is different from what it has been said to be by Lloyd Jones J recently in the Loader case now before the Court of Appeal.
6. The claim springs from the application for planning permission made by Persimmon for 170 homes and other associated works on a site east of Carson's Drive, Great Cornard, Sudbury, Suffolk. The site is about 16 hectares with housing proposed on just over four of those hectares. As I say, the grade one listed building at Abbas Hall is near the site. The site is allocated for housing in the local plan.
7. In November 2010 the Council adopted a screening opinion which concluded amongst other things that the proposed development will not have a significant impact on the environment by virtue of motion, traffic noise, vibrations and other matters. An environmental impact assessment is therefore not required. However, the Council reconsidered the matter following representations from the claimant's solicitors and in a second opinion it concluded that an EIA was indeed necessary. It concluded that the development proposals were likely to have an impact on the setting of Abbas Hall and on the locally designated SLA and there was a high probability of a significant environmental event occurring.
8. Persimmon then wrote to the Secretary of State in April 2011 for a screening direction. This resulted in a letter dated 21 October 2011 which concluded in relevant part:

"Whilst recognising the historic and cultural importance of the landscape both in terms of the grade one listed building at Abbas Hall, its status as part of a special landscape area, and its cultural associations with the works of Thomas Gainsborough, the location of the development largely shielded by a bowl in the landscape and next to an existing housing development together with the wider absorption capacity of open rolling hills around the site mean that the impact of the development would not be of sufficient magnitude to be likely to have a significant effect on the environment."

9. This led to a pre action protocol letter and the bringing of this claim on 20 December last year. The application for permission on the papers was refused by Mr Kent QC on 27 February and has now been renewed today.
10. The legislative background stems from Directive 85/337/EEC, known as the EIA Directive. An EIA development is defined as "schedule 2 development likely to have significant effects on the environment by virtue of facts as nature and the size of the location", a formulation which is picked up in the letter from which I have just read. This is scheduled 2 development.
11. A screening direction is defined by regulation 2 as a direction made by the Secretary of State as to whether development is an EIA development. Regulation 3.2 prohibits the relevant planning authority from granting planning permission for EIA development unless they have first taken into account environmental information as defined, and these screening matters are then developed in regulations 4 and 5.
12. The court has been assisted by appearances from Mr Stookes for the claimant, Mr Forsdick for the Secretary of State and Mr Lewis for the second interested party. In his submissions on the part of the claimant, Mr Stookes recognised at the outset that his case can only succeed if the evaluation in any judicial review is to a more rigourous standard than that of Wednesbury reasonableness. He submits that Wednesbury unreasonableness, as applied in this area for a considerable period and on high authority, sets too high a threshold when the decision under review is whether or not the EIA Directive applies. He sets out eight reasons why the Wednesbury principle should be departed from. But the essence of his submission is that the environmental rights of the citizen, as they now stand as recently extended by European Union law, will be stifled if the application of the Wednesbury principle is allowed to stand. He also submits that this court can in effect disregard -- by reason of the fact that it is considering EU matters, and specifically EIA ones -- or not follow decisions of higher courts.
13. That submission is rejected by counsel for the other parties, who point out that not dissimilar challenges have failed in the past over the years in cases like Malster and most recently before Lloyd Jones J in Loader. It is also submitted, it seems to me with force, that the submission being put forward is contrary to the House of Lords authority, certainly to the speech of Lord Hoffmann, when read as a whole, in Berkeley.
14. The position as it currently stands is helpfully put by Richards LJ in his judgment for permission to appeal in Loader at the end of last year. He says:

"The other issue that the applicant seeks to raise is that the standard of review of the decision as to whether a development is likely to have significant environmental effects. The established view is that such a decision is reviewable by the court only on grounds of Wednesbury reasonableness."

15. The court must follow the law as it stands and not speculate about how the law might change. It is also important to bear in mind that a decision at this level departing from that of Lloyd Jones J, quite apart from overcoming all of the other difficulties, would also involve departing from the high and long established authority which lies behind the views expressed by the judge.
16. The application raises other issues. It is alleged that there is a fundamental error of fact made in the course of the decision. I am not going to read out the competing submissions on this or the other grounds, but it seems to me clear that what is said to be a fundamental error of fact, except in relation to what boils down to a semantic point about English Heritage, is essentially a disagreement about matters of professional judgment between those representing the claimant and the Secretary of State.
17. Similarly, again without recording the able and detailed submissions on either side, the allegation that there are perverse and illogical conclusions about the impact of landscape change is also no more than a well argued disagreement with the screening officer's judgment as to the significance of the impact of matters which he has to consider. Precisely the same point arises with the alleged misunderstanding of English Heritage advice.
18. There is a point raised about highways and transport matters. Here again it is a matter of judgment, where the Secretary of State, through his delegated officer, was entitled to find that there would not be significant effects resulting from the highways works.
19. The other points, it seems to me, fall into the same category to the extent that they are not rendered unarguable by Loader and similar cases.
20. I agree with the view expressed by the deputy judge, who put it as follows:

"The elaborate grounds in the end do not identify arguable error of law. The decision is plainly not unreasonable in the Wednesbury sense and there are no decisive facts amongst those allegedly overlooked by the Secretary of State of such a character that the decision is arguably rendered unlawful."

He also goes on to say, and I agree with this too:

"As to the argument that there is a jurisdictional precedent fact issue for this court to argue, the existing authorities are clear."

He then goes on to express more lucidly than me, views similar to those which I have already set out about the pending decision in the Court of Appeal in the Loader case.

21. It is a particular pleasure to receive helpful submissions from a fellow solicitor, particularly when they are put forward so ably and attractively by Mr Stookes. But his bold submissions about Wednesbury are not sufficiently arguable to merit the grant of permission.
22. Accordingly, this application is refused and it follows that it is unnecessary for me to deal with the protective costs issues.