England and Wales High Court (Administrative Court) Decisions

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

		Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		25 January 2013

H.H. Judge Keyser Q.C.:

Introduction

1. This is an application by the claimant, Mrs Victoria Gregory, under section 288 of the Town and Country Planning Act 1990 ("the Act") for an order quashing a decision made by the defendant's inspector, Mr A. Thickett, on 25 October 2012.
2. The inspector's decision was made on an appeal by the second interested party, Mr Owen Rowlands, under section 78 of the Act against the failure of the first interested party ("the council") as local planning authority to give notice within the prescribed period of a decision on his application for planning permission for a small wind farm on his land. The claimant was an objector at the appeal and opposed the grant of planning permission. One of her contentions was that the application for planning permission should be subject of Environmental Impact Assessment ("EIA"). The inspector addressed the question whether EIA was required and decided that it was not. He allowed the appeal and granted planning permission.
3. On this application, the claimant has challenged the inspector's decision on a number of closely related grounds relating in particular to his conclusion that EIA was not required. The defendant and the interested parties supported the inspector's decision.
4. At the hearing I was greatly assisted by written and oral submissions from Mr Crean Q.C. for the claimant and from Mr Walters for the defendant. As the argument progressed, it became clear that the central issue was whether regulation 9 (2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the Regulations") precluded the inspector from determining the appeal until he had obtained a screening direction from the defendant as to whether or not EIA was required.
5. For the reasons set out below, I have come to the conclusion that, by reason of regulation 9 (2), the inspector had no jurisdiction to determine the appeal and that his decision should be quashed on that ground.

The legislative framework

6. The Regulations came into force on 14 March 1999. They were revoked in relation to England with effect from 24 August 2011; however, they remain in force in relation to Wales. References in the Regulations to "the Secretary of State" are to be read, in relation to Wales, as references to the defendant.
7. The purpose of the Regulations was to implement, in relation to town and country planning in England and Wales, Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC.
8. The recitals of Council Directive 85/337/EEC explain the purposes for which that Directive was adopted. For present purposes it is enough to refer to a few of the recitals:

"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;

…

Whereas projects belonging to certain types have significant effects on the environment and these projects must as a rule be subject to systematic assessment;

Whereas projects of other types may not have significant effects on the environment in every case and whereas these projects should be assessed where the Member States consider that their characteristics so require;

…

Whereas the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life".

9. It is unnecessary to consider the detailed provisions of the Directive itself. However, reference might be made to Article 1 (3):

"The competent authority or authorities shall be that or those which the Member States designate as responsible for performing the duties arising from this Directive."

10. The following provisions of the Regulations, in their latest amended form, are particularly relevant in the present case.



"2 Interpretation

(1) In these Regulations—

…

'EIA application' means—

(a) an application for planning permission for EIA development; or

(b) a subsequent application in respect of EIA development;

'EIA development' means 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 development' means 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;

…

'screening direction' means a direction made by the Secretary of State as to whether development is EIA development;

'screening opinion' means a written statement of the opinion of the relevant planning authority as to whether development is EIA development;

'sensitive area' means any of the following—

…

(h) an area of outstanding natural beauty designated as such by an order made by the Countryside Commission, as respects England, or the Countryside Council for Wales, as respects Wales, under section 87 (designation of areas of outstanding natural beauty) of the National Parks and Access to the Countryside Act 1949 as confirmed by the Secretary of State"

"3 Prohibition on granting planning permission or subsequent consent without consideration of environmental information

(1) This regulation applies—

(a) to every application for planning permission for EIA development received by the authority with whom it is lodged on or after the commencement of these Regulations;

…

(2) 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.

4 General provisions relating to screening

(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 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.

(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development.

…

(7) The Secretary of State may make a screening direction irrespective of whether he has received a request to do so."

"5 Requests for screening opinions of the local planning authority

(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.

…

(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.

…

(6) Where an authority—

(a) fail to adopt a screening opinion within the relevant period mentioned in paragraph (4); or

(b) adopt an opinion to the effect that the development is EIA development;

the person who requested the opinion may request the Secretary of State to make a screening direction."

"9 Appeal to the Secretary of State without an environmental statement

(1) Where on consideration of an appeal under section 78 (right to appeal against planning decisions and failure to take such decisions) it appears to the Secretary of State that—

(a) the relevant application is a Schedule 1 application or Schedule 2 application; and

(b) the development in question—

(i) has not been the subject of a screening opinion or screening direction; or

(ii) in the case of a subsequent application, was the subject of a screening opinion or direction before planning permission was granted to the effect that it is not EIA development; and

(c) the relevant application is not accompanied by a statement referred to by the appellant as an environmental statement for the purposes of these Regulations,

paragraphs (3) and (4) of regulation 6 [time within which the Secretary of State shall make a screening direction, and power for the Secretary of State to request further information] shall apply as if the appeal were a request made by the appellant pursuant to regulation 5(6).

(2) Where an inspector is dealing with an appeal and a question arises as to whether the relevant application is an EIA application and it appears to the inspector that it may be such an application, the inspector shall refer that question to the Secretary of State and shall not determine the appeal, except by refusing planning permission or subsequent consent, before he receives a screening direction."

"SCHEDULE 2—Descriptions of Development and Applicable Thresholds and Criteria for the Purposes of the Definition of Schedule 2 Development

The carrying out of development to provide any of the following—

…

3 (i) Column 1: Description of development

Installations for the harnessing of wind power for energy production (wind farms)

Column 2: Applicable thresholds and criteria

(i) The development involves the installation of more than 2 turbines; or

(ii) the hub height of any turbine or height of any other structure exceeds 15 metres."

11. Finally, section 288 of the Town and Country Planning Act 1990 provides, so far as is material for present purposes, as follows:

"(1) If any person …

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section."

"(5) On any application under this section the High Court …

(b) if satisfied that the … action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that … action."

The relevant facts

12. In 2011 Mr Rowlands was minded to carry out development involving the installation of a small wind farm on the farm owned by and in the possession of members of his family on Anglesey. In the application for planning permission that Mr Rowlands later submitted the proposed development was described as follows:

"the erection of 2 50kw wind turbines with a hub height of 29.6m and a rotor diameter of 20m and all associated works".

13. That proposed development was Schedule 2 development, because it satisfied both column 1 and column 2 with respect to class 3 (i) in Schedule 2 to the Regulations and was not exempt development.
14. Therefore, if the proposed development were likely to have a significant effect on the environment by virtue of factors such as its nature, size or location, it would be EIA development, and an application for planning permission to carry out the development would be an EIA application.
15. Accordingly, on 24 August 2011 Mr Rowlands requested the council as local planning authority to adopt a screening opinion under regulation 5.
16. Pursuant to that request, on 14 September 2011 the council's Head of Planning Service issued a screening opinion on behalf of the council to the effect that the proposed development was not EIA development. Its conclusion read as follows:

"Having considered the proposed development taking into account the information submitted and the selection criteria contained in Schedule 3 of the regulations, my judgement is that the proposed development is unlikely to have significant effects on the environment and that EIA is not required.

However, the local planning authority considers that a Landscape and Visual Impact Assessment should be submitted with any planning application for the proposal. The comments and requirements of the attached consultation responses should also be taken into account."

17. Having received that screening opinion, on 22 September 2011 Mr Rowlands made an application to the council for planning permission for the development.
18. The council failed to give notice of its decision on the application within the appropriate period. Accordingly on 30 May 2012 Mr Rowlands appealed to the defendant, who transferred the authority to decide the appeal to the inspector. (By the time the appeal was lodged, the council had authorised its officers to grant planning permission, subject to the receipt of comments relating to a residential amenity assessment. Although the council did not appear at the hearing of this application for a quashing order, it has opposed the application and has supported the inspector's decision to grant planning permission.)
19. The inspector had before him and had regard to the claimant's written representations to the effect that Mr Rowlands' application was an EIA application. He addressed that point, under the heading "Environmental Impact Assessment", in paragraph 3 of his Appeal Decision:

"The Council's and Welsh Government's conclusion that an Environmental Impact Assessment (EIA) is not required is challenged. Wind turbines with a hub height of more than 15m are classified as Schedule 2 development in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. It does not follow that an EIA will be required because a development falls into Schedule 2[:] an assessment needs to be made of, amongst other things, the character of the development and its planning impact. Having considered the proposed development, I agree with the Council and the Welsh Government that an EIA is not required."

20. The reference to "the Council's … conclusion" is to its screening opinion. Written evidence from the inspector shows that the reference to the "Welsh Government's conclusion" is to a memorandum from the defendant's Planning Division, which showed that they had considered the matter and had concluded, in agreement with the first interested party, that EIA was not required.
21. At the hearing of this application, the defendant accepted that the Planning Division's memorandum did not constitute a screening direction by the defendant for the purposes of the Regulations and that no such screening direction had been made.
22. Having considered the merits of the proposed development, the inspector granted planning permission, subject to certain conditions.

This application

23. The claimant issued her application for a claim form on 4 December 2012. The claim form relied on three grounds: first, that the inspector had not given reasons for his conclusion that EIA was not required; second, that the inspector had failed to apply the defendant's stated policy in respect of EIA and had failed to give any reasons for departing from that policy; third, that the decision to grant planning permission was bad on the merits.
24. The ground of challenge relating to merits was not pursued. The ground relating to policy was wisely abandoned in the course of argument.
25. I should record that, at the commencement of the hearing, I gave permission to the claimant to amend the claim form in order to rely on further grounds relating to procedural matters. Central to those grounds were the memorandum mentioned in paragraph 20 above and the contention that, where the inspector had apparently had regard to a document which emanated from the defendant and of which the objectors had no knowledge other than the unexplained reference in paragraph 3 of the Appeal Decision, the appeal had not been conducted with necessary fairness. However, I made clear that I was unwilling to reach a decision on some grounds but not others; and, as consideration of the new, procedural grounds would have required an adjournment, the claimant very properly chose not to pursue them.

Discussion

26. Although the primary focus of Mr Crean's written submissions was on the alleged inadequacy of the reasons that the inspector gave for his conclusion that the application was not an EIA application, I am of the opinion that the short and decisive point in the case is one that Mr Crean made in his oral submissions, namely that the inspector ought not to have purported to decide whether the application was an EIA application but ought rather to have referred that question to the defendant for determination and that, until the question were lawfully determined, he had no power to allow the appeal and grant planning permission.
27. In my judgment, this conclusion follows plainly from the clear wording of regulation 9 (2). A question arose on the appeal as to whether Mr Rowlands' application was an EIA application. Accordingly it was the inspector's role to ask whether "it may be such an application". If he decided that it might be such an application, it was not open to him to decide whether or not it was in fact such an application; rather he was required to "refer that question"—namely, the question whether the relevant application was an EIA application—"to the [defendant]", and before he received a screening direction he was prohibited from determining the appeal "except by refusing planning permission".
28. Either the inspector did not ask the proper question or, if he did ask it—and the final two sentences in paragraph 3 of the Appeal Decision suggest that he both asked it and answered it affirmatively—, he proceeded to address an improper question, namely whether EIA was required. On behalf of the defendant, Mr Walters accepted—subject to one qualification, to which I shall turn below—that the only sensible answer to the question whether the application might be an EIA application would have been that indeed it might be such an application. That is obviously correct. By proceeding to ask and answer the question whether in fact it was such an application, the inspector impermissibly usurped the function of the defendant, which by reason of regulation 9 (2) was in the circumstances the competent authority designated as responsible for performing the duties arising from the Directive in accordance with Article 1 (3) of the Directive.
29. Mr Walters raised an argument against this conclusion. It was to the effect that, at least for the purposes of the appeal, the screening opinion given by the council was determinative of the fact that the application was not an EIA application (or, which is the same thing, that it was determinative of the fact that it was not the case that the application might be such an application). He submitted that, as the screening opinion had not been challenged by judicial review, it remained fully valid and effective and was properly relied on by the inspector.
30. In my judgment, that argument is plainly wrong. It reflects a misunderstanding of the way in which the Regulations work and of the policy that underlies them, as well as of the effect of the council's screening opinion.
31. Put at the simplest and most general level, which will suffice for present purposes, the purpose of the Directive and of the Regulations that implement it is to ensure that adequate levels of environmental protection are achieved within the planning process. In that context, the provisions of regulation 4 are perfectly coherent and readily intelligible. A screening direction by the defendant is conclusive, for the purpose of the Regulations, of the question whether development is or is not EIA development: see regulation 4 (3). A local planning authority's screening opinion to the effect that development is EIA development is also conclusive of that fact, subject to any screening direction by the defendant: see regulation 4 (1), (2)(b). However, the Regulations do not provide that, if the local planning authority adopts a screening opinion to the effect that development is not EIA development, that screening opinion is conclusive (or conclusive subject to a screening direction by the defendant).
32. The unequal treatment of what I may term positive screening opinions and negative screening opinions is clearly deliberate. It has the effect that the environmental protection provided by EIA will be achieved when the local planning authority considers it necessary but will not be lost simply because the local planning authority does not consider it necessary. In the latter case, if the need for EIA is raised as a question and is reasonably arguable, the inspector hearing an appeal is precluded from granting planning permission until the defendant has determined the question. (If there is no appeal because the local planning authority grants planning permission, a person with a sufficient interest may seek judicial review. Such a person may also, before the grant of planning permission, request the defendant to exercise its powers under regulation 4 (7).)
33. Accordingly, it is of no assistance to talk of the council's screening opinion being "valid" or "effective". Under the Regulations that screening opinion did not determine the question whether the development was EIA development. The inspector did not have power to grant planning permission until that question had been determined by the defendant.
34. Mr Walters submitted in the alternative that a quashing order should be refused as a matter of discretion, on the basis that such an order would serve no practical purpose in circumstances where the council, the inspector and the defendant's Planning Division have all formed the view that EIA is not required. I do not agree. Where administrative action has been taken in excess of power, the normal relief is a quashing order. The council and the inspector both failed, in my view, to give any proper reasons for the opinion that they formed (as appears from the quotations in paragraphs 16 and 19 above) and the rigour with which the Planning Division addressed the matter is unclear from the evidence. More importantly, the effect of the inspector's decision was to bypass the competent authority designated by the domestic legislation pursuant to Article 1 (3) of the Directive and thereby to circumvent the scrutiny with ministerial responsibility required by the Regulations.
35. Accordingly I shall grant the application and make a quashing order.