QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
HEADCORN PARISH COUNCIL
|- and -
|SECRETARY OF STATE FOR
COMMUNITIES AND LOCAL GOVERNMENT
|(1) MAIDSTONE BOROUGH COUNCIL
(2) DHA PLANNING
Robert Williams (instructed by the Government Legal Department) for the Secretary of State for Communities and Local Government
Stephen Whale (instructed by Sharpe Pritchard LLP) for Maidstone Borough Council
The Second Interested Party in CO/6389/2015 did not appear and was not represented
The Interested Parties in CO/6624/2015 did not appear and were not represented
Hearing date: 4 April 2017
Crown Copyright ©
Mrs Justice Lang :
"(e) pollution and nuisances
The main implication for pollution and nuisances would be through an increase in traffic (air quality and noise) during construction and once occupied. However, I do not consider this scale of development would result in significant levels of pollution or noise from its use to warrant an ES …."
There was no consideration of the cumulative impact of congestion in the A274 corridor south of Maidstone.
"Overall, it is considered the accesses would be safe and that the impact of additional traffic on local roads and junctions would, or could be made acceptable through improvement, with no objections raised by the Highways Authority. It is noted that the NPPF at paragraph 32 advises that development should only be refused on transport grounds where residual cumulative impacts of development are severe, which is not the case here, subject to mitigation. As such, any highways impacts are not considered grounds for refusal."
"In assessing the proposal the Secretary of State considers that transport and related impacts (i.e. pollution) together with flood related, landscape and ecology impacts arising from additional residential development in Headcorn are the main issues to be addressed.
Firstly, turning to the transport impacts of the proposal, the Secretary of State notes that a transport assessment has been produced (Oct 2014) and that the Highway Authority are broadly content although the findings are contested. Nonetheless, the information is sufficient to indicate that the effects of the additional residential development will be local in effect and will not have a wider significance both in terms of access onto the Ulcombe Road and more widely in and around Headcorn. Furthermore, the information indicates that there would be only limited impact on Headcorn in terms of any additional congestion and any associated indirect impacts (e.g. pollution) that may result. For these reasons, the Secretary of State's view is that there is not a likelihood of significant environmental effects in terms of transport impacts.
As set out above, there are a series of recent residential permissions and further proposals at this settlement. The view of the local planning authority, that all the additional potential residential development, individually and cumulatively, would not give rise to a likelihood of significant environmental effects, is noted. In this context, the Secretary of State's view is that the combined impacts of this proposal alongside particularly but not exclusively application 1. (14/505162/FULL) above and other recent residential development and permission would not be likely to have a significant environmental effect with regard to either of the main issues identified above or in relation to any other matters raised. Overall, there is no evidence of any factors that either in isolation, or in combination would necessitate EIA for this proposal, including on grounds of cumulative impact."
"'Screening opinion' means a written statement of the opinion of the relevant planning authority as to whether development is EIA development."
"'Screening direction' means a direction made by the Secretary of State as to whether development is EIA development."
"Selection criteria for screening Schedule 2 development
1. Characteristics of development
The characteristics of development must be considered having regard, in particular, to –
(a) the size of the development;
(b) the cumulation with other development;
(c) the use of natural resources;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of accidents, having regard in particular to substances or technologies used.
2. Location of development
The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular to –
(a) the existing land use;
(b) the relative abundance quality and regenerative capacity of natural resources in the area;
(c) the absorption capacity of the natural environment …[listing specific types of environments]
3. Characteristics of the potential impact
The potential significant effects of development must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to -
(a) the extent of the impact (geographical area and size of the affected population);
(b) the transfrontier nature of the impact;
(c) the magnitude and complexity of the impact;
(d) the probability of the impact;
(e) the duration, frequency and reversibility of the impact."
"43. What emerges is that the test to be applied is: "Is this project likely to have significant effects on the environment?" That is clear from European and national authority, including the Commission Guidance at B3.4.1. The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. Only if there is a manifest error of assessment will the ECJ intervene (Commission v UK).
The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken….
44. The criteria in the annexes to the Regulations justify the approach to the question proposed in Circular 02/99, paragraphs 33, 34 and annex A. It is stated, at paragraph 34, that the number of cases of schedule 2 development which are EIA developments will be "a very small proportion of the total number of schedule 2 developments"."
"What is the procedure for deciding whether a Schedule 2 project is likely to have significant effects?
When screening Schedule 2 projects, the local planning authority must take account of the selection criteria in Schedule 3 of the Regulations. Not all of the criteria will be relevant in every case. Each case should be considered on its own merits in a balanced way and authorities should retain the evidence to justify their decision.
Only a very small proportion of Schedule 2 development will require an assessment. While it is not possible to formulate criteria or thresholds which will provide a universal test of whether or not an assessment is required, it is possible to offer a broad indication of the type or scale of development which is likely to require an assessment. It is also possible to provide an indication of the sort of development for which an assessment is unlikely to be necessary. To aid local planning authorities to determine whether a project is likely to have significant environmental effects, a set of indicative thresholds and criteria have been produced. See the indicative thresholds and criteria. The table also gives an indication of the types of impact that are most likely to be significant for particular types of development.
However, it should not be presumed that developments above the indicative thresholds should always be subject to assessment, or those falling below these thresholds could never give rise to significant effects, especially where the development is in an environmentally sensitive location. Each development will need to be considered on its merits.
Paragraph: 018 Reference ID: 4-018-20140306
Revision date: 06 03 2014"
"21. The authorities considered by this court in Loader's case show that an approach which considers whether there is a real risk as opposed to a probability of an impact embodies a precautionary approach. They are set out by Pill LJ, who gave the only substantive judgment: see  EWCA Civ 869 at  – . Toulson and Sullivan LJJ agreed with Pill LJ. For the reasons in the following paragraphs of this judgment, I have concluded that it is unarguable that the Secretary of State's approach in this case failed to embody a precautionary approach.
22. The assessment of the significance of an impact or impacts on the environment has been described as essentially a fact-finding exercise which requires the exercise of judgment on the issues of "likelihood" and "significance": see Bowen-West v Secretary of State  EWCA Civ 321 at  per Laws LJ, and Jones v Mansfield  EWCA Civ 1408 at  and  per Dyson and Carnwath LJJ. Carnwath LJ stated that, because the word "significant" does not lay down a precise legal test but requires the exercise of judgment on planning issues and consistency in the exercise of that judgment in different cases, the function is one for which the courts are ill-equipped. See also the well-known statement of Lord Hoffmann in Tesco Stores v Secretary of State  1 WLR 759 at  that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State. This is particularly so where the issue is the visual impact of a development on a site, and the relevant officer, unlike the court, has visited the site and used his expertise in assessing it.
23. I reject Mr Wolfe's submission that the statement in the supplementary note that English Heritage's advice was that the impact on the landscape and building "would" not be of such significance to justify EIA constituted a reviewable error. English Heritage certainly did not maintain that the impact on the historic landscape justified EIA. Both European and national jurisprudence show that the "likely to have significant effects on the environment" test probably requires "something more than a bare possibility … though any serious possibility would suffice": see R (Bateman) v South Cambridgeshire DC  EWCA Civ 157 at  and the opinion of the Advocate-General in Case C-75/08 R (Mellor) v Secretary for Communities and Local Government  Env LR 18 at . The last paragraph of the supplementary note replicates the statutory test and the Secretary of State's conclusion was unequivocal and stronger. It stated that the development "would not cause a significant environment impact". That is a more precautionary approach than is required by the 1999 EIA Regulations.
25. Mr Wolfe's argument that the Secretary of State fell into error depends on his submission based on the decision of the Grand Chamber in Case C/127/02 Waddenzee (2004) ECR 1–7405 that a key element of a precautionary approach and the approach which should have been undertaken by the Secretary of State is that further assessment is required, and thus a positive screening decision was required, unless it can properly be said that there is no reasonable doubt about the potential for significant environmental impact.
26. Mr Wolfe submitted that in the light of the views of English Heritage, the Suffolk Preservation Society, and the Council this could not be the case. That, however, comes very close to suggesting that once there are differing views on a question, there must be a full EIA. It is also very similar to the submission made unsuccessfully in Loader's case that a full EIA process is required in all cases where the effect would influence the development consent decision. As Pill LJ stated (at ), accepting that submission would devalue the entire EIA concept, which involves a formal and substantial procedure often involving considerable time and resources. It is also clear from both the national and the EU indicative guidance that the full EIA process will only be required in a very small proportion of the total number of Schedule 2 developments.
27. To require the EIA process where there are differing views would also largely make the Secretary of State's role redundant. As to the Waddenzee case, that was concerned with the Habitats Directive. The reference to a reasonable doubt is to a reasonable doubt in the mind of the primary decision-maker. There is no support in that case for the view that, where somebody else has taken a different view to the primary decision-maker, it is not possible to demonstrate that there is no reasonable doubt. It is not suggested in this case that the Secretary of State or his officer had any such doubt."
"It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission. That comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, of whether an EIA needs to be undertaken at all. I think it important therefore that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term 'screening opinion'."
"102. There has to be a sensible limit to what a screening decision-maker is expected to do. This view is supported in the cases to which I have referred, notably, for example, in Bateman (see paragraph 24 above). Conjecture about future development on other sites that might or might not act with the development in question to produce indirect, secondary or cumulative effects is not in the screening decision-maker's remit. I do not think the precautionary approach extends to that. And when it is suggested in a claim for judicial review that a screening decision was deficient because some potential cumulative effect was left out, it is not enough for a claimant simply to point to other developments in the locality that have been or might be approved, and to leave it to the court to work out whether any aggregate effects were unlikely to be significant. Unless it is obvious that relevant and potentially significant effects on the environment have been overlooked, the court will need some objective evidence to show this was so. It will need to be satisfied that the authority responsible for the screening decision was aware, or ought to have been, of the potential cumulative effects; that the screening opinion could not reasonably have been negative if those potential effects had been considered; and that this was, or should have been, apparent to the authority at the time.
103. Above all, the court must be able to conclude in those circumstances that the authority's screening judgment was rendered unlawful by the omission. The court's role is not to second-guess the screening judgment of the authority to which Parliament has entrusted the task, but only to review that judgment on Wednesbury grounds. The thrust of what Sullivan L.J. said in paragraph 37 of his judgment in Boggis must surely apply to the screening process for EIA (see paragraph 28 above). If the court is to strike down an otherwise lawful planning permission because potentially significant effects on the environment have been ignored in a screening opinion it must have some solid basis for that conclusion. In this case I find it impossible to conclude, on the submissions and evidence before me, that the County Council's screening opinion was flawed in that way."
Summary of submissions by the parties
"If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters."
i) whether the development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location (reg. 2(1) and reg. 4(3)); and
ii) the selection criteria in schedule 3 in so far as they were relevant to the development (reg. 4(6)).
i) the Transport Assessment, the scope of which was approved in advance by KCC Highways;
ii) KCC Highways' consultation comments on the planning application, which also accepted the methodology and material findings of the Transport Assessment;
iii) the objections by the Claimant and others to the planning application;
iv) MBC's screening opinion;
v) the planning officer's report to MBC's Planning Committee; and
vi) the Claimant's representations to the Secretary of State in support of the application for a screening direction.
"6. …although the highway objections that have been raised by the Council to date have been limited to major development that are within the Maidstone urban area, the Council's concerns relate to the potential traffic impacts of developments along the A229 and A274 corridors and are not limited to the effects of development only within the Maidstone urban area, and in particular within south and south-east Maidstone.
7. I indeed noted in my letter of 20 January 2017, exhibited by Mr Timm's second witness statement, that "constraints are most pronounced within the south eastern sector of the Maidstone area". However the point is that the traffic levels on these corridors are not dictated solely by development within Maidstone itself, but are influenced by housing supply along the length of the relevant corridors. The letter further notes that it is uncertain whether strategic improvement can be achieved that will mitigate the impact of development along these corridors."
"The evidence made available through the jointly commissioned VISUM traffic modelling has demonstrated how such constraints are most pronounced within the south eastern sector of the Maidstone urban area, due to extensive traffic congestion on the A229 and A274 corridors." (emphasis added)
I note that in her witness statement (quoted above), Mrs Cooper inaccurately omitted the highly significant word "urban" from the quotation from her own letter. Mrs Cooper went on to say:
"In view of the known physical constraints at key junctions in the south eastern sector of Maidstone, such as the Wheatsheaf and Loose Road/Armstrong Rd/Park Way junctions, it is uncertain whether strategic improvement can be achieved that will mitigate the impact of development. This uncertainty is relevant to the planned developments on both the A229 and A274 corridors…."
I accept Mr Timms' evidence that, in both these paragraphs, she was referring to the A274 corridor in the south eastern sector of Maidstone, not the entirety of the A274.
"neither the urbanising effect of this level of residential development, nor the cumulative impact in relation to the main relevant issues (particularly transport and associated impacts, but also flood risk, landscape, heritage and ecology) indicate that, cumulatively, significant effect is likely. There is at worst minor adverse impact for most issues, although this is greater in relation to traffic and transport impacts. However, the information for that topic in particular does not indicate this to be so severe as to be significant."
In my judgment, this was a legitimate exercise of his planning judgment which cannot be successfully impugned.