QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
B e f o r e :
(sitting as a Judge of the High Court)
|THE QUEEN (on the application of Mrs Gillian Hughes)||Claimant|
|SOUTH LAKELAND DISTRICT COUNCIL|
|OLD BREWERY (ULVERSTON) LIMITED|
|HARTLEY'S (ULVERSTON) LIMITED||Interested Parties|
Jonathan Easton (instructed by Legal Services Group, South Lakeland District Council ) for the Defendant
David Manley QC (instructed by DLA Piper UK LLP Solicitors) for the Interested Parties
Hearing date: 1 October 2014
Crown Copyright ©
(1) Ground 1: The screening opinion dated 21 January 2013 ("the Screening Opinion") was defective;
(2) Ground 2: The Council in making its decision failed to give priority weight to the impact of the Development on the local conservation area and the assessment of heritage impacts was otherwise defective;
(3) Ground 3: The Council wrongly excluded the question of retail need from its assessment of the planning merits;
(4) Ground 4: The Council did not recognise or give proper weight to the Development Plan; and
(5) Ground 5: The reasons given for granting the permission were defective and/or unintelligible.
GROUND 1: THE SCREENING OPINION
(1) The European Court will interfere only where there had been a manifest error of assessment of the question of significant environmental impact. In R (Loader) v Secretary of State  Env LR 7, Pill LJ endorsed paragraph 34 of 02/99 which stated that EIA would be required in only a very small proportion of Schedule 2 developments;
(2) The role of the Court should be limited to a review of the decision as to EIA on Wednesbury grounds;
(3) While the LPA does not need to set out at length the considerations taken into account in the Screening Opinion, its essential reasoning must be plain; this of course is now superseded by the express terms of Regulation 4 (7) of the 2011 Regulations which apply here;
(4) Just because there is some uncertainty about the likely effects of the development does not mean that the LPA must conclude that an EIA is required. It depends if there is sufficient information available to enable a decision on the issue reasonably to be made. A screening opinion is a decision made almost inevitably on the basis of less than complete information. It is an initial assessment of an intended proposal and the Courts should not impose too high a burden on LPAs;
(5) The LPA's reasons may be contained in the Screening Opinion itself or separately if necessary combined with additional material supplied on request. See Bateman. And Regulation 4 (7) referred to above speaks of reasons "accompanying" the Screening Opinion.
The Structure of the Screening Opinion here
"For questions 5, 6 and 7 the overarching question to be answered is whether the development is likely to have "significant environmental effects". In deciding upon the significance of the environmental effects it is necessary to refer to the selection criteria set out in Schedule 3….".
"When answering the questions please refer to Schedule 3 as detailed above and also the indicative thresholds and criteria contained in Annex A of 02/99 which help to provide a starting point for consideration."
"…in my opinion, having taken into account the criteria in Schedule 3..[the Development] would not be likely to have a significant effect on the environment by virtue of factors such as its nature, size or location…..the above development would not require the submission of an [EIA]."
Challenges to the Screening Opinion
Statement of Conclusion
"The development may have some impact on the adjacent residential properties
in terms of noise and activity generated from the proposed development. These
impacts have to be weighed against the current and potential activities
associated with the site under its existing form and uses.
An Environmental Noise Assessment, Air Quality Assessment and Ground Investigation Report have been submitted with the application and will be used to assess the likely impacts and identify potential mitigation requirements.
The proposal will generate additional traffic movements by both customers and servicing vehicles. The impact and acceptability of this aspect of the proposal will need to be fully assessed by the local Highways Authority and the Highways Agency. A Transport Assessment has been submitted which also includes a travel plan and safety audit to enable these aspect to be assessed.
The site is not located within a high flood risk zone, however, a culverted watercourse crosses the car park which may be affected by the proposal, and will need to be assessed by the drainage authorities."
Consideration of Schedule 3
GROUND 2: WEIGHT GIVEN TO HERITAGE AND CONSERVATION IMPACTS
"special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
"131. in determining planning applications, local planning authorities should take
the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality; …..
132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification…..
133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:….
134. Where a development proposal will lead to less than substantial harm to the
significance of a designated heritage asset, this harm should be weighed
against the public benefits of the proposal, including securing its optimum
135. The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset."
The Challenge here
(a) The Failure to apply the Presumption
(b) The Tower
GROUND 3: FAILURE TO CONSIDER RETAIL NEED
(a) Retail Need and R5
"RETAIL-DEVELOPMENT OUTSIDE ULVERSTON TOWN CENTRE
Further proposals for new, large scale, retail/ development outside Ulverston town centre will not be allowed, unless the proposal is 'accompanied by evidence to demonstrate that the development would not have an adverse effect on the vitality and viability of Ulverston town centre . In addition, development proposals will need to:
(a) provide evidence of a demonstrable need for the development;
(b) demonstrate the following sequential test:……"
"Local Plans must be prepared with the objective of contributing to the achievement of sustainable development. To this end, they should be consistent with the principles and policies set out in this Framework, including the presumption in favour of sustainable development."
(b) The Booths Point
GROUND 4: GENERAL FAILURE TO STATE OR FOLLOW THE DEVELOPMENT PLAN
"CONTROL OF DEVELOPMENT AFFECTING CONSERVATION AREAS
Within Conservation Areas, priority will be given to the preservation and enhancement of the character or appearance of the special architectural and historic interest of the Area…….Development in a Conservation Area will not be permitted:
(a) which results in the demolition or partial demolition of a building which contributes to the character or appearance of the Area. In exceptional cases, where demolition is allowed, a planning condition may be imposed, requiring that demolition shall not commence until a clear commitment is in place to carry out the proposed replacement development;"
GROUND 5: REASONS CHALLENGE
"The proposed development is in accordance with the aims and objectives of the National Planning Policy Framework and with policies CS1.1, CS1.2, CS3.1, CS7.5, CS8.6, CS8.8, CS9.2, CS10.1 and CS10 of the South Lakeland Core Strategy and saved policies C16, S2 and S10 of the South Lakeland Local Plan. There are no material considerations that indicate against the proposal. The Local Planning Authority has acted positively and proactively in determining this application by identifying matters of concern within the application (as originally submitted) and negotiating with the applicant, acceptable amendments to the proposal to address those concerns. As a result, the Local Planning Authority has been able to grant planning permission for an acceptable proposal, in accordance with the presumption in favour of sustainable development, as set out within the National Planning Policy Framework."