QUEEN'S BENCH DIVISION
1 Bridge Street West
Manchester M60 9DJ
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and -
|CUMBRIA COUNTY COUNCIL
|UNITED UTILITIES WATER LIMITED
John Barrett and Piers Riley-Smith (instructed by Nicola Watson, Legal Department of United Utilities) for the Interested Party
Hearing dates: 7th May 2019
Crown Copyright ©
HH JUDGE EYRE QC:
The History and Factual Background.
The Provision under which the Defendant gave Permission.
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."
"(1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application.
(2) Subsection (1) applies to development carried out—
(a) without planning permission;
(b) in accordance with planning permission granted for a limited period; or
(c) without complying with some condition subject to which planning permission was granted.
(3) Planning permission for such development may be granted so as to have effect from—
(a) the date on which the development was carried out; or
(b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period."
The Environmental Impact Assessment Regime.
"- the execution of construction works or of other installations or schemes
- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources."
(2) The EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development on the following factors—
(b) biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC1 and Directive 2009/147/EC2 ;
(c) land, soil, water, air and climate;
(e) the interaction between the factors referred to in sub-paragraphs (a) to (d).
(3) The effects referred to in paragraph (2) on the factors set out in that paragraph must include the operational effects of the proposed development, where the proposed development will have operational effects.
'"European site" means a site within the meaning of regulation 8 of the Conservation of Habitats and Species Regulations 2017 [there is no dispute that the River Kent is such a site]
"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'
A "sensitive area " is defined as including a European site.
Schedule 2 paragraph 13 (b) relates to changes to developments of a kind which includes wastewater treatment plants of the size of the Plant and the relevant threshold is set out in column 2 as being that "the development as changed or extended may have significant adverse effects on the environment".
Was the Permitted Development Schedule 2 Development?
"the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."
The characteristics of development must be considered with particular regard to—
(a) the size and design of the whole development;
(b) cumulation with other existing development and/or approved development;
(c) the use of natural resources, in particular land, soil, water and biodiversity;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of major accidents and/or disasters relevant to the development concerned, including those caused by climate change, in accordance with scientific knowledge;
(g) the risks to human health (for example, due to water contamination or air pollution).
"a description of the main characteristics of the operational phase of the development (in particular any production process), for instance, energy demand and energy used, nature and quantity of the materials and natural resources (including water, land, soil and biodiversity) used"
The Effect of the Conclusion as to the Permitted Development's Nature.
The Conservation of Habitats and Species Regime.
" (1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable it to determine whether an appropriate assessment is required.
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies.
(5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.
"8. The proper approach to the Habitats Directive has been considered in a number of cases at European and domestic level, which establish the following propositions:
(1) The environmental protection mechanism in Article 6(3) is triggered where the plan or project is likely to have a significant effect on the site's conservation objectives: Landelijke: Vereniging tot Behoud van de Waddenzee v Staatsscretaris van Lanbouw (Case C-127/02)  All ER (EC) 353 at  ("Waddenzee").
(2) In the light of the precautionary principle, a project is "likely to have a significant effect" so as to require an appropriate assessment if the risk cannot be excluded on the basis of objective information: Waddenzee at .
(3) As to the appropriate assessment, "appropriate" indicates no more than that the assessment should be appropriate to the task in hand, that task being to satisfy the responsible authority that the project will not adversely affect the integrity of the site concerned. It requires a high standard of investigation, but the issue ultimately rests on the judgement of the authority: R (Champion) v North Norfolk District Council  UKSC 52;  1 WLR 3710, Lord Carnwath at  ("Champion").
(4) The question for the authority carrying out the assessment is: "What will happen to the site if this plan or project goes ahead; and is that consistent with maintaining or restoring the favourable conservation status of the habitat or species concerned?": Sweetman v An Bord Pleanàla (Case C-258/11);  PTSR 1092, Advocate General at .
(5) Following assessment, the project in question may only be approved if the authority is convinced that it will not adversely affect the integrity of the site concerned. Where doubt remains, authorisation will have to be refused: Waddenzee at [56-57].
(6) Absolute certainty is not required. If no certainty can be established, having exhausted all scientific means and sources it will be necessary to work with probabilities and estimates, which must be identified and reasoned: Waddenzee, Advocate General at  and , endorsed in Champion at  and by Sales LJ in Smyth v Secretary of State for Communities and Local Government  EWCA Civ 174 at  ("Smyth").
(7) The decision-maker must consider secured mitigation and evidence about its effectiveness: Commission v Germany (Case C-142/16), ECLI:EU:C:2017:301 at .
(8) It would require some cogent explanation if the decision-maker had chosen not to give considerable weight to the views of the appropriate nature conservation body: R (Hart District Council) v Secretary of State for Communities and Local Government  EWHC 1204 (Admin) at .
(9) The relevant standard of review by the court is the Wednesbury rationality standard, and not a more intensive standard of review: Smyth at .
9. Drawing matters together, the task of the decision-maker is first to consider whether the risk of the project having a significant effect on the site's conservation objectives can be excluded. If it cannot, an assessment must be undertaken to ascertain the impact of the project and identify whether it is consistent with maintaining the site's conservation status. Mitigation measures must be taken into account and considerable weight should be attached to the views of the nature conservation body. Once the assessment has been carried out, approval can only be given if the authority is convinced that the project will not adversely affect the integrity of the site concerned. Absolute certainty is not required, and where it cannot be achieved after all scientific efforts, the decision-maker must work with reasoned probabilities and estimates; but where doubt remains, authorisation will be refused."
Was an Appropriate Assessment required Here?
"a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment."
"Moreover, the authorities confirm that in a context such as this a relevant competent authority is entitled to place considerable weight on the opinion of Natural England, as the expert national agency with responsibility for oversight of nature conservation, and ought to do so (absent good reason why not) …"
The Effect of the Absence of an Appropriate Assessment.