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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Swan & Ors v Secretary Of State For Scotland, Re Application For Judicial Review [1999] ScotCS 100 (23 April 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/100.html
Cite as: [1999] ScotCS 100
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OPINION OF LORD MACFADYEN

 

in the Petition of

 

RICHARD SWAN AND OTHERS

 

Petitioners;

 

against

 

SECRETARY OF STATE FOR SCOTLAND

 

for

 

Judicial Review of a decision by the Minister of Agriculture, Forestry and the Environment at the Scottish Office on or about 30 November 1995 not to require environmental assessment in relation to a planting proposal by Mr Iain Dykes of Greenlawdean Farm, Greenlaw, Berwickshire and the failure to transpose the provisions of Council Directive 85/337/EEC of 27 June 1985 into

UK law.

 

 

________________

 

 

Petitioner: Sir Crispin Agnew of Lochnaw, Q.C.; Dundas & Wilson

Respondent: C Campbell, Q.C.; Ms Dunlop; Scottish Office

 

23 April 1999

Introduction

In this petition for judicial review the petitioners challenge a decision made by the appropriate Minister at the Scottish Office not to require an environmental assessment in relation to a forestry proposal. The decision which is challenged was made in November 1995, the petition was presented in June 1996, a first hearing took place in December 1996, and the Lord Ordinary dismissed the petition in March 1997. There then followed a reclaiming motion which was heard in February 1998. In the result the court allowed the reclaiming motion, repelled the respondent's first plea-in-law, which was a plea of mora, and remitted to the Lord Ordinary to proceed as accords. When the matter came before me for a further first hearing, the scope of the issues raised in the petition was restricted in two further respects. In the first place, Sir Crispin Agnew of Lochnaw, who appeared for the petitioners, intimated that, in light of the fact that new regulations (the Environmental Assessment (Forestry) Regulations 1998) had been made which superseded those which were in force at the material time (the Environmental Assessment (Afforestation) Regulations 1988), he no longer sought declarator that there was a failure to transpose the Directive on which he principally relied into United Kingdom law. Secondly, Mr Campbell, who appeared for the respondent, indicated that he was no longer insisting in the respondent's second plea-in-law, which challenged the petitioners' title and interest to insist in the petition. The result was that the issue before me was simply the validity of the Minister's decision not to require an environmental assessment.

 

The Proposal

The circumstances which gave rise to this petition may be quite briefly stated. In 1995 Mr Iain Dykes of Greenlawdean Farm, Greenlaw, Berwickshire, applied to the Forestry Authority for grant aid under the Woodland Grant Scheme to afforest an area of his farm extending to some 132 hectares. Adjoining the area which Mr Dykes proposed to plant was an area of moorland known as Greenlaw Moor, which is designated as a Site of Special Scientific Interest (SSSI). Part of that area surrounding Hule Moss was further designated under the Ramsar Convention on Wetlands of International Importance. At the material time the part of the moor which constituted the Ramsar site was also a candidate for designation as a Special Protection Area (SPA) under the Birds Directive (79/409/EEC), and that designation was confirmed in 1996. The Ramsar site and the SPA are co-extensive, and their western boundary lies about 200 metres east of the plantation area. The plantation area and the whole SSSI, including the Ramsar Site and the SPA, lie within an area designated by Borders Regional Council (BRC) as an Area of Great Landscape Value (AGLV). The Forestry Commission, after some consultation with other bodies, took the view that an environmental assessment (EA) was not required. The petitioner avers that:

"Apparently as a result of local concern (voiced by the Petitioners and others) as to the lack of EA in this case, the matter was referred during the autumn of 1995 to the Respondent for a decision on whether or not to require EA."

Eventually the Minister wrote to the first petitioner on 30 November 1995 intimating his decision not to require an environmental assessment. Shortly thereafter the grant was approved. The planting was carried out between January and April 1996.

 

The Minister's Decision

At the material time the United Kingdom legislation dealing with environmental assessment in relation to forestry was contained in the Environmental Assessment (Afforestation) Regulations 1988 (SI 1988, No. 1207). Regulation 7 provided:

"The Minister may of his own motion give a direction that consideration of environmental information is required in any case in which the [Forestry] Commissioners have decided to the contrary."

The Minister's decision intimated on 30 November 1995, although it makes no specific reference to Regulation 7, appears to have been a decision not to exercise his power under that Regulation to override the Forestry Commission's decision that there need not be an environmental assessment in relation to Mr Dykes' proposal.

The decision was expressed in a relatively informal letter addressed to the first petitioner. The text of the letter was as follows:

"Thank you for your letter of 25 August in which you ask me to call for an environmental assessment of the Woodland Grant Scheme application at Greenlawdean, for your further letters of 5 and 14 November, and for your most recent letter of 27 November. Thank you also for coming to the meeting at the Castle Inn on 13 November and letting me hear your views.

Following my visit to Greenlaw I have considered all of the information provided to me in the letters I have received and during my visit. In deciding whether I should call for an environmental assessment my task has been to determine whether such an assessment would reveal information that had not already been taken into account by the Forestry Authority, or shed a different light on the impact of the proposals on the environment.

I am satisfied that the Forestry Authority and the statutory bodies that the Forestry Authority consulted on the proposals have considered all of the information that bears on the application. I am also satisfied that the applicant, in designing the new woodland, has addressed the environmental impact of his proposals. I have concluded, therefore, that I would not be justified in calling for an environmental assessment. In reaching this conclusion I have noted the comprehensive appraisal of the proposals by Borders Regional Council and Scottish Natural Heritage. Having listened to the comments they made at the meeting, I have no reason to believe that an environmental assessment would give them reasonable cause to take a different view of the proposals. I would therefore judge that the outcome of a formal environmental assessment under the Regulations would be the same as has followed the Forestry Authority's consideration in the light of their consultation with statutory bodies.

A number of people expressed concern about the effect of the woodland on the level of predation on the adjacent moorland. I am satisfied that the possible impact of the proposed planting on predation levels has been fully considered. I am aware, however, that there may be a more general concern about the relationship between forestry and predation and I have therefore asked the Forestry Commission to consider how we might further our knowledge in this area."

There then followed a manuscript postscript in which the Minister added:

"I have probably spent more time pondering the detail of this decision than any other since I took this job. I fully understand the concerns raised and am grateful to you for the efforts you made by letter and at the meeting to bring matters to my attention."

On 22 December 1995 the Minister wrote to the second petitioner in inter alia the following terms:

"... I am also satisfied that my decision not to direct the Forestry Commission to institute an environmental assessment under the Environmental Assessment (Afforestation) Regulations (1988) was reasonable. I remain of the view that an environmental assessment is not required in this case by either the 1988 Regulations or the European Community Directive.

I know how strongly you feel about the need for an environmental assessment. I would assure you that I have reached my conclusion only after very careful consideration. I care deeply about the environment and I would not have allowed the scheme to be approved without an environmental assessment if I had believed that it would be likely to cause significant harm."

 

The Environmental Assessment Directive

The Directive to which the Minister referred in his letter of 22 December was the Council Directive 85/337/EEC of 27 June 1985 ("the EA Directive"). It is convenient to refer at this stage to those parts of it that were founded on in the course of the hearing. Sir Crispin placed reliance on the sixth paragraph of the preamble which is in the following terms:

"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 people who may be concerned by the project in question".

Article 2(1) provides:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment with regard to their effects."

Article 3 provides:

"The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:

- human beings, fauna and flora,

- soil, water, air, climate and the landscape,

- the inter-action between the factors mentioned in the first and second indents,

- material assets and the cultural heritage."

Article 4(2) provides:

"Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require. To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10."

The list in Annex II of projects subject to Article 4(2) includes:

"1. Agriculture

(d) Initial afforestation where this may lead to adverse ecological changes ...".

Article 5 makes provision for ensuring that the developer supplies information, and that any authorities with relevant information make it available to the developer. Article 6(1) makes provision for ensuring that "the authorities likely to be concerned by the project by reason of their specific environmental responsibilities" are consulted and given the opportunity to express their opinion. Article 6(2) makes provision for ensuring that information is provided to the public and they are given the opportunity to express an opinion before the project is initiated. Article 8 provides inter alia that information gathered pursuant to Articles 5 and 6 must be taken into consideration in the consent procedure. Article 9 makes provision for the decision and the reasons for it to be made public.

 

The Regulations

The 1988 Regulations were enacted to give effect in the United Kingdom to the EA Directive in relation to forestry projects. The primary provision was Regulation 3 which provided that:

"The [Forestry] Commissioners shall make no grant or loan for an afforestation project where in their opinion the project will be likely to have significant effects on the environment, and may lead to adverse ecological changes, by reason inter alia of its nature, size or location, unless they have first taken into consideration environmental information in respect of that project."

"Environmental information" was defined in Regulation 2 as:

"the environmental statement prepared by the applicant for a grant or loan in respect of that afforestation project, any representations made by any authority or body required by these Regulations to be consulted, and any representations duly made by any other body or person about the likely environmental effects of the afforestation project."

Regulation 3 required an environmental assessment only in the context of an application for a grant or loan. The Regulations made no provision for any form of development consent in the case of a project for which public funding was not sought; consequently any such project could proceed without an environmental assessment. In that respect the Regulations did not cover all the cases in which environmental assessment was required under the Directive. That was the point made originally in Statement 4(b) of the petition. Mr Dykes' application was, however, an application for grant aid, and consequently his project did not fall outwith the scope of the Regulations by reason of any failure there may have been properly to transpose the Directive into United Kingdom law. Moreover, as I have already noted, the transposition point is no longer pursued by the petitioners, because the 1998 Regulations now make provisions for an application for project consent in all cases.

Sir Crispin was critical of the way in which Regulation 3 drew together in one provision the separate tests set by Article 2(1) and Annex II. 1.(d) of the Directive. In an abstract sense, there seems to me to be some force in the criticism, but as the submissions developed in the course of the hearing, it did not seem to me that in the end anything turned on the point.

I have already noted the provision in Regulation 7 giving the Minister power to direct that there should be an environmental assessment in a case in which the Forestry Commission has decided to the contrary.

 

Application of an Incorrect Test

The first ground of challenge to the validity of the Minister's decision which Sir Crispin developed in argument was that the Minister had misdirected himself as to the test by which he ought to have determined whether he should direct that an environmental assessment should be carried out, and in particular had failed to apply the criteria set by Article 2(1) of the EA Directive.

According to Sir Crispin's submissions, the Minister, in exercising his power under Regulation 7, required first to address whether the proposal fell within the scope of Annex II. 1.(d). That involved considering whether the proposed afforestation "may lead to adverse ecological changes". Since that criterion addressed the mere possibility of adverse ecological changes, it was one which would be readily satisfied. It was clear, he said, that both the Forestry Commission and the Minister had taken the view that the proposal did fall within Annex II. 1.(d). In his submissions for the respondent, Mr Campbell accepted that that was so. It is therefore unnecessary to discuss that aspect of the matter further. It may be taken as common ground that the proposal was within the scope of Annex II. 1.(d) and therefore of Article 4(2).

Sir Crispin submitted that once a project was seen to fall within the scope of Article 4(2), the next issue that required to be addressed was whether it was "likely to have significant effects on the environment by virtue inter alia of [its] nature, size and location" (Article 2(1)). He made the point that significant effects might be adverse or favourable. Mr Campbell also accepted that the Minister required to address the Article 2(1) test. The result is that there is no material difference between the parties as to the identification of the correct test which the Minister ought to have applied.

I am of opinion that a Minister, when considering whether to exercise his power under Regulation 7 in a case which admittedly falls within Annex II. 1.(d) and in respect of which the part of the Regulation 3 test which reflects Annex II. 1.(d) is therefore satisfied, must, by virtue of the remainder of Regulation 3 and of Article 2(1), apply his mind to the question whether the project is likely to have significant effects on the environment by virtue inter alia of its nature, size or location. I am also of opinion that, as was common ground between the parties, if the Minister concludes that the project is likely to have such effects, he is bound to direct that there should be an environmental assessment.

The question therefore comes to be whether the Minister did in this case address his mind to the Article 2(1) criterion, and reach his decision on the basis of it. Sir Crispin submitted that it was clear that he had not applied that criterion. Mr Campbell submitted that he had. The matter turns, in effect, on the inferences properly to be drawn from the Minister's letters of 30 November and 22 December 1995.

Looking first at the letter of 30 November, Sir Crispin made a number of points.

(1)

In the second paragraph of the letter the Minister said:
   

"In deciding whether I should call for an environmental assessment, my task has been to determine whether such an assessment would reveal information that had not already been taken into account by the Forestry Authority, or shed a different light on the impact of the proposals on the environment."
 

That, said Sir Crispin, was plainly wrong. The Minister's task was to address the Article 2(1) question.

(2)

In the third paragraph the Minister said:
   

"I am ... satisfied that the applicant, in designing the new woodlands, has addressed the environmental impact of his proposals."
 

That, it was submitted, was irrelevant.

(3)

In the third paragraph the Minister added:
   

"I have no reason to believe that an environmental assessment would give [BRC and Scottish Natural Heritage (SNH)] reasonable cause to take a different view of the proposals."
 

That too was not the correct test.

(4)

Again in the third paragraph the Minister continued:
   

"I would therefore judge that the outcome of a formal environmental assessment under the Regulations would be the same as has followed the Forestry Authority's consideration in the light of their consultation with statutory bodies."
 

That, it was submitted, was not the point that required to be decided. It was not for the Minister to second guess the outcome of an environmental assessment, and decide whether one was required by reference to whether it was likely to lead to a different outcome from the one reached on consideration of the proposal without the benefit of an environmental assessment.

(5)

In the fourth paragraph the Minister dealt with the effect of the woodland on the likely level of predation on the adjacent moorland. He said:
   

"I am satisfied that the possible impact of the proposed planting on predation levels has been fully considered",
 

but then went on to indicate that he had asked the Forestry Commission to consider how knowledge in that area might be furthered. Sir Crispin suggested that the question, so far as predation was concerned, was whether the proposal was in that respect likely to have significant effects on the environment, and that if the Minister's knowledge of the matter required to be furthered, he could not at that stage say that there would be no such effects.

(6)

In general, there was nowhere to be found in the letter any indication that the Minister had addressed the Article 2(1) test and decided that the proposal would not be likely to have significant effects on the environment.

Turning to the letter of 22 December 1995, Sir Crispin submitted in the first place that it should not be regarded as a decision letter at all. It was sent to Mr Leggate (and copied to Mrs Walton), but had not been sent to Mr Swan, one of the recipients of the letter of 30 November. It required to be read in the context of Mr Leggate's letter of 8 December to which it was a reply. In so far as it expressed the conclusion that the Forestry Commission had acted properly, it must be taken as endorsing their view that an environmental assessment would be an unnecessary expense - see the third last paragraph of SNH's letter of 8 June 1995. Economic considerations of that sort were irrelevant to the Article 2(1) issue. That reinforced the conclusion that the Minister had misdirected himself. Moreover, if it was legitimate to have regard to the letter of 22 December as part of the decision-making process, when the Minister said that he "would not have allowed the scheme to be approved without an environmental assessment if [he] had believed that it would be likely to cause significant harm", he was not applying correctly the Article 2(1) test. He was considering only whether the proposal was "likely to cause significant harm" (emphasis added), when the correct question was whether it was likely to have significant effects, a broader issue which addressed beneficial as well as harmful impact.

Mr Campbell, although critical of what he said was the petitioner's unduly strict and technical approach to the construction of the Minister's letter of 30 November, acknowledged that if that letter had stood alone as the only evidence of the way in which the Minister had addressed his task under Regulation 7, there would have been some difficulty in resisting the submission that the wrong test had been applied. He submitted that the question was whether the court could be satisfied that when deciding not to direct that there be an environmental assessment the Minister had adopted the wrong test, i.e. had applied some test other than that set by the words of Article 2(1). He accepted that in the November letter there was nothing to indicate expressly that the Article 2(1) test had been applied by the Minister. Moreover, the formulation by the Minister of his "task" (see point (1) in Sir Crispin's submissions, above) was not in accordance with the Directive. Nevertheless, Mr Campbell submitted, it could be inferred that the Minister, in saying what he did, was proceeding from the point at which he had agreed with the conclusion reached by the Forestry Commission that by the statutory test an environmental assessment was not required. Although there was little positively to support that inference in the November letter, it was clear from the terms of the letter of 22 December that that was the inference which ought properly to be drawn. It was legitimate to take that letter into account, at least as an adminicle of evidence about the Minister's reasoning. The second paragraph of that letter referred both to the Regulations and to the Directive, and expressed the Minister's view that an environmental assessment was not required by them. Perhaps more significantly, there was the statement of the Minister's position in the third paragraph:

"I would not have allowed the scheme to be approved without an environmental assessment if I had believed that it would be likely to cause significant harm."

Although the Minister used the words "significant harm" instead of "significant effects", that statement was nevertheless a clear indication that the Minister was aware that the proper test was the one set by Article 2(1) and reflected in Regulation 3, and that it was his view that the application of that test to the proposal did not require an environmental assessment to be carried out. The reference to "harm" instead of effects was of no significance when regard was had to the fact that the matter was before the Minister because of representations that the proposal would have significant harmful effects on the environment. It therefore could not be concluded that the Minister had misdirected himself by applying the wrong test.

In my opinion Mr Campbell was right to recognise that the terms of the Minister's letter of 30 November 1995, if read in isolation, go a long way towards indicating that the Minister misdirected himself as to the test to be applied in deciding whether to exercise his power under Regulation 7 to direct that an environmental assessment be carried out. The strength of this aspect of the petitioners' case rests, in my view, on the combination of two circumstances, namely (i) the total absence from the letter of any reference to the question of whether the proposal was "likely to have significant effects on the environment" (point (6) of Sir Crispin's submissions); and (ii) the express identification by the Minister of his "task" in terms wholly different from the test derived from Regulation 3 and Article 2(1) (point (1) of Sir Crispin's submissions), and which involved instead forming a view in advance of what an environmental assessment was likely to yield (points (3) and (4) of Sir Crispin's submissions). If that letter had been the only source of evidence as to what the Minister had in mind when he was making his decision, it would, in my view, have been open to me to conclude that the Minister misdirected himself. Even then, however, the error would have been a rather startling one for the Minister to commit, because it would have involved not, as sometimes occurs, a misconstruction of the words of a statute or other source of power, but the substitution for the statutory test of a different test with no foundation at all in the Regulations or the Directive. Even if the Minister had read Regulation 7 in isolation from the Directive, and had concluded that it conferred on him an unfettered discretion to direct that there be an environmental assessment or not as he saw fit, it is difficult to see how he could have thought that his "task" was to determine ab ante whether an environmental assessment, if carried out, would shed a different light on the impact of the proposals.

It is, however, in my view appropriate to have regard not only to the letter of 30 November, but also to the one of 22 December. I do not consider that it is right to regard the second letter as a decision letter. The decision was announced in the letter of 30 November. But where the petitioners seek to have me answer the question whether the Minister misdirected himself by inference from the terms in which he expressed himself in the decision letter, it is in my view appropriate to have regard also to other material which casts light on the reasoning in fact adopted by the Minister.

Before turning to the second letter, however, I should deal with the remaining points made by Sir Crispin about the letter of 30 November. Sir Crispin was, in my view, right (in his point (2)) to characterise as irrelevant the Minister's view that the applicant had addressed the environmental impact of his proposals. That he had done so does not per se mean that an environmental assessment is not required on a proper application of the Article 2(1) test. It may be that the point which the Minister intended to express in this passage was that he was of the view that the applicant had successfully addressed the environmental impact of the proposals, so that they were not likely to have significant effects on the environment, and an environmental assessment was therefore not required by the Article 2(1) criterion; but so to construe the passage involves reading more into the words than is actually expressed. If, however, the passage in question cannot legitimately be read as going as far as that, it nevertheless does not, in my opinion afford clear evidence that the Minister applied the wrong test.

So far as Sir Crispin's point (5) is concerned, I am of opinion that on a fair reading of the passage about predation the point that the Minister is making is that he is satisfied that in making their decision that an environmental assessment was not necessary the Forestry Commission had not failed to apply their minds to predation as an aspect of the effects of the proposal on the environment. In other words, he is confirming that what was being put forward as a relevant consideration had not been left out of account. It is not in my view right to read the words "fully considered" as indicative of a failure to apply to the question of the impact of predation the test of whether the proposal is "likely to have significant effects on the environment". Nor, in my view, is it sound to conclude that, because the Minister contemplated the acquisition of further knowledge on the subject, he cannot properly have concluded that in respect of predation there was no likelihood of significant effects on the environment. That approach, if applied generally, would be unworkable. It is to be assumed that any environmental assessment is likely to yield fresh or fuller information about the impact of the proposals. The decision whether to order an environmental assessment must therefore inevitably be taken on the basis of less complete information about the likely effect of the proposals than would be available if an environmental assessment had been carried out. It is therefore implicit in the structure of the Directive that the decision on the Article 2(1) issue must be taken, as best it can be, on such information as is actually available at that stage. This point is therefore not, in my opinion, a sound criticism of the Minister's approach.

I turn therefore to the letter of 22 December in order to examine whether it casts light on the reasoning adopted by the Minister. In stating that he remains of the view that an environmental assessment is not required by the Regulations or the Directive, the Minister must, in my view, be taken as demonstrating that he had the terms of the Regulations and the Directive, and the need to apply those terms in making his decision, in mind at the time of making his decision. That passage in the letter of 22 December therefore, in my view, constitutes an obstacle in the way of drawing from the letter of 30 November the inference of misdirection which the petitioners seek to maintain should be drawn. More significant, however, in my view, is the last sentence of the third paragraph of the letter of 22 December. No attack was mounted on the good faith of the Minister in expressing himself as he did in that letter. That being so, the statement that he would not have allowed the proposal to be approved without an environmental assessment if he had believed that it would be likely to cause significant harm must, in my view, be taken as a genuine statement of the Minister's position on the matter. It is a statement that the Minister's view was that that the proposal would not be likely to cause significant harm. It is, of course, strictly correct that "significant harm" is not a wholly accurate reflection of the words of the Directive or the Regulations, which refer rather to "significant effects". The issue before the Minister, however, was that interested parties, including the petitioners, were maintaining that there would be significant effects of a harmful nature. There was no live issue to the effect that environmental assessment was required because of significant beneficial effects. That being so, I am of opinion that the difference between the language of the legislation and the language used by the Minister is of no practical significance. The conclusion which I reach is that, when regard is paid to the terms of the Minister's letter of 22 December, it is impossible to draw the inference of misdirection which the petitioners seek to have me draw. The letter of 22 December shows, in my view, that the Minister had the requirements of the Regulations and the Directive in mind, and that he was aware that the proper test was whether the proposal was likely to have significant effects (in this case harmful effects) on the environment. It is, in my view, necessary, when construing the Minister's letters, to bear in mind that they are not formal decision letters drafted and signed on the Minister's behalf by a senior civil servant exercising a quasi-judicial function in the Minister's name (as are, for example, decision letters issued in appeals under the town and country planning legislation), but informal letters written by the Minister to parties who had made representations to him. Allowing the latitude which a letter of that sort is entitled to receive, and reading the letter of 30 November in light of the letter of 22 December, I am of opinion that the proper conclusion is that, although the earlier letter might have been expressed with more precision and in language that related more closely to the statutory test which the Minister was obliged to apply, it cannot properly be concluded that the Minister misdirected himself by applying some test other than the one set by Article 2(1) of the Directive.

 

Which Version of the Proposal

Sir Crispin advanced a separate argument against the validity of the Minister's approach which related to the identification of the version of the proposal which the Minister ought to have considered. He submitted that the Minister had fallen into error by considering whether the proposal, as it stood at the time when the matter was before him, modified in certain respects in light of suggestions made by the various authorities who had been consulted, was one in respect of which environmental assessment was required. The correct approach, he said, was for the Minister to consider whether the proposal, as formulated in the original application, and ignoring the effects of any subsequent modifications, was one in respect of which environmental assessment was required. He referred to the provisions of Article 6 of the Directive, which regulate the steps to be taken to ensure that relevant authorities and the public are consulted, provided with information and given the opportunity of expressing their opinions on the proposal in the course of environmental assessment. He submitted that it would nullify the purpose of those provisions if the applicant and the authorities could get together before the decision was made as to whether an environmental assessment was necessary, and arrange modifications of the proposal to obviate the need for an environmental assessment. The proper time for the relevant authorities to become involved was after the application had been held to require environmental assessment. They would then be provided with the information which the Directive contemplated, as would the public. The authorities would then be more fully informed, and better able to express an opinion on the proposal. The public would, meanwhile, also be fully informed, and would have the opportunity which the Directive contemplated of expressing their opinions in light of that information. The consequence of these considerations, Sir Crispin argued, was that the decision on whether there should be an environmental assessment should be taken by reference to the original application, and not by reference to any amended or modified version that emerged from informal pre-assessment discussions with the authorities.

Sir Crispin submitted that there was clear authority for that view in Commission of the European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR I-2189. The point which was decided in that case concerned the deadline for implementation of the Directive, which was 3 July 1988. The formal application for development consent for the construction of a new block at the Großkrotzenburg power station was lodged on 26 July 1988. There had, however, been earlier informal preliminary proceedings which antedated the deadline for implementation, and it was argued that on that account, the application should be treated as one begun before the deadline and therefore one which did not require environmental assessment in accordance with the Directive. The European Court of Justice held (in paragraphs 32 and 33 of its judgment):

"Informal contacts and meetings between the competent authority and the developer, even relating to the content and proposal to lodge an application for consent for a project, cannot be treated for the purposes of applying the directive as a definite indication of the date on which the procedure was initiated. The date when the application for consent was formally lodged thus constitutes the sole criterion which may be used. Such a criterion accords with the principle of legal certainty and is designed to safeguard the effectiveness of the directive. The Court moreover followed this approach in Bund Naturschutz, cited above ...

The consent procedure for the project at issue must accordingly be regarded as having been initiated after the deadline of 3 July 1988, with the result that the project was required to undergo an assessment of its effects on the environment in accordance with the directive" (emphasis added).

Sir Crispin's submission, as I understood it, was that the passage which I have highlighted in that decision was clear authority for the proposition that in deciding whether an environmental assessment was required the Minister required to consider exclusively the application as originally submitted, and ignore any alleviation of the environmental impact of the project brought about by amendment of the proposal in light of informal consultation with the authorities.

Mr Campbell submitted that the Directive treated the environmental assessment as part of the over-all decision-making process. That being so, unless the Directive gave a clear indication to the contrary, the environmental assessment should be carried out in respect of the project for which development consent was sought. No such contrary indication was to be found in the Directive. Consequently, when the relevant authority, or the Minister, was deciding whether an environmental assessment was required, and in doing so was addressing the Article 2(1) criterion, that decision should be made in relation to, and that criterion applied to, the proposal as it stood at the time when the decision was under consideration. The public participation provisions on which Sir Crispin relied were part of the process of environmental assessment. They came into operation only once it had been decided that there required to be an environmental assessment. Their existence had no impact on the question of whether the original or the amended application should be considered when deciding whether an environmental assessment was required. If, before the decision as to whether an environmental assessment was required, the applicant modified his proposal, whether in light of observations by relevant authorities or of his own accord, it was upon examination of the modified proposal that the decision should be made.

In my opinion, this aspect of Sir Crispin's submissions is fundamentally misguided. If between the date on which the formal application is made and the date on which a decision as to whether an environmental assessment must be carried out is made the applicant modifies his proposal, it seems to me to be obvious that the decision should be made in respect of the modified proposal. If the modification is permissible, then it is the modified proposal for which approval is by that stage sought. In my view it matters not what the source of the modification is. An applicant might simply change his mind, either in the hope of improving his prospects of obtaining approval, or for other reasons of his own; or he might have drawn to his attention by a relevant authority a respect in which his proposal might be made more acceptable. I see nothing illegitimate in modifications brought about in any of these ways. It would, in my view, be wholly artificial if, despite the making of such a modification, the decision as to whether an environmental assessment is required had to be made by reference to the original application, for which the applicant was no longer seeking approval, and ignoring the modified version, which was the proposal for which approval was by then sought. There is, in my view, nothing in the Directive which compels the adoption of such an artificial approach. The contrary approach does not, as Sir Crispin suggested, nullify the consultation provisions of the Directive. They come into operation only once it has been determined that there has to be an environmental assessment. If, as a result of modification made to the proposal before the decision on the need for environmental assessment is made, it is found that the proposal is not one which is likely to have significant effects on the environment, then environmental assessment is not required and there is no occasion for public participation as contemplated in Article 6. The provision for public participation has not been nullified. The situation in which such participation is required has simply not arisen.

Sir Crispin's reliance on Commission v Germany is also, in my opinion, misconceived. In treating it as support for his submission, he is wrenching the dictum on which he founds from its proper context. That context is the determination of which proposals are regulated by the Directive at the margin around the date on which it came into operation. For the purpose of determining whether, in a temporal sense, the Directive applied to a proposal, the ECJ held that the only relevant date was the date of the formal application, and antecedent informal discussions fell to be ignored. I am quite unable to see how that decision can be read as supporting the proposition that the decision whether there is to be an environmental assessment, in a case which is unquestionably within the temporal scope of the Directive, must be determined by reference to the original application, ignoring any modifications already made to it.

I am therefore satisfied that the Minister did not misdirect himself in addressing the need for an environmental assessment by reference to the modified proposal as it stood immediately prior to his decision.

 

Unreasonableness

The second main branch of the petitioners' case was that the Minister's decision not to direct that there should be an environmental assessment was unreasonable, and invalid on that account. Sir Crispin, in support of that contention, placed before me a considerable volume of material relating to the considerations which, in his submission, any reasonable Minister would have had in mind, including aspects of the Birds Directive and the Habitats Directive (92/43/EEC) and government guidance from a number of sources, but it is, in my view, convenient to begin consideration of this aspect of the case by taking note of certain authorities which Miss Dunlop, for the respondent, placed before me.

Miss Dunlop was at pains to remind me of the proper bounds of the court's jurisdiction to hold ministerial decisions invalid on the ground of unreasonableness. She cited first R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] AC 484 in which Lord Brightman, after expressing disquiet about the prolific use of judicial review to challenge the performance by local authorities of their duties under the housing legislation, made the following more general point (at 518):

"The ground on which the courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense (see Associated Picture Houses Limited v Wednesbury Corporation [1947] 1 KB 223), i.e. unreasonableness verging on an absurdity: see the speech of Lord Scarman in R v Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] AC 240 at 247. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

Miss Dunlop referred also to R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 in which (at 764H-765C) Lord Lowrie drew together from earlier cases some of the more "colourful statements" of judicial opinion which he regarded as emphasising the legal principle that judicial review is a supervisory rather than appellate jurisdiction. Those included describing the sort of decision that might be held invalid on the ground of unreasonableness as "so absurd that no sensible person could ever dream that it lay within the powers of the authority" (Wednesbury per Lord Greene MR at 229); "so wrong that no reasonable person could sensibly take that view" (Secretary of State for Education and Science v Thameside Metropolitan Borough Council, [1977] AC 1014, per Lord Denning MR at 1026; "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, per Lord Diplock at 410; and "so absurd that he must have taken leave of his senses" (R v Secretary of State for the Environment, Ex parte Nottinghamshire County Council, per Lord Scarman at 247). Miss Dunlop also cited the leading Scottish case, West v Secretary of State for Scotland 1992 SC 385, in which the point was made (at 413) that:

"The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body [to whom a jurisdiction power or authority has been delegated or entrusted] does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires."

Reference was also made to Bonnes v West Lothian District Council 1997 SLT 398, in which Lord Osborne followed the approach outlined in the other dicta cited. Sir Crispin did not suggest that the dicta which Miss Dunlop cited as to the correct approach to the question of reasonableness did not properly reflect the law of Scotland. These dicta operate, in my view, as a salutary reminder of the limited function which the court has when reviewing the reasonableness of ministerial action. I readily accept that it is not appropriate for the court to substitute its judgment for the judgment of the Minister on the question which statute requires him to decide. The task of a party seeking to have a ministerial decision set aside on the ground of unreasonableness is therefore not an easy one. It is only if the court is persuaded that no minister, properly directing his mind to the issue before him, could have reached the conclusion which the Minister did reach that it is legitimate for it to set the decision aside on the ground that it was unreasonable.

In developing his submission that the Minister's decision was unreasonable, Sir Crispin embarked on a review of various sources of guidance which, he submitted, the Minister ought to have taken, but failed to take, into account. He referred first to a Forestry Commission document entitled "Environmental Assessment of New Woodlands" which contained the following passage:

"... an EA will probably be needed in the following circumstances:
  • for any new planting in a National Nature Reserve or a Site of Special Scientific Interest where the work is listed as potentially damaging; or
  • where the planting is expected to have a major environmental impact because of where it is, or its size or nature. We will look particularly carefully at the need for an EA where planting is proposed in other areas which are of national importance for their environmental value - namely National Parks, National Scenic Areas, Areas of Outstanding Natural Beauty and Environmentally Sensitive Areas. If we are not sure whether an assessment is necessary for proposals in these areas we will ask the relevant environmental agencies for their advice before reaching our decision. Where more than 100 hectares are proposed for planting in such special areas, an EA will certainly be necessary."

The 100 hectare criterion was satisfied here, if the AGLV was taken as the equivalent of an Area of Outstanding Natural Beauty. In any event, that guidance was too narrowly expressed, because it made no reference to Special Protection Areas designated under the Birds Directive, and confined its attention to cases where the proposal was "in" a special area, whereas if proper account were taken of the Birds Directive and the Habitats Directive proposals on land close to such areas would be treated similarly (see the Birds Directive, Article 4, as modified by the Habitats Directive, Article 6(2) and (3), particularly the last sentence of Article 4(4) of the Birds Directive). If the Minister had taken proper account of the Forestry Commission guidance, broadened to take proper account of the Birds and Habitats Directives, the case for an environmental assessment in the present case would have been clear. Sir Crispin went on to refer to the Scottish Office Environment Department Circular 6/1995 dealing with implementation in Scotland of the Habitats and Birds Directives, and drew attention to the terms of paragraphs 20, 24 to 26 and 28 to 30. Although he recognised that it was concerned with planning rather than forestry, Sir Crispin also referred to the Scottish Development Department Circular 1/1988, and in particular paragraphs 6, 7, 8 and 10, arguing that similar considerations ought to be taken into account in relation to forestry. Similarly, he referred to SDD Circular 13/1988, and in particular paragraph 25 which referred to the need for rigorous examination of proposals "in or very close to" SPAs (emphasis added). Finally, Sir Crispin referred to the Department of the Environment PPG 9, which in a similar way (at paragraph 29) referred to the need for special scrutiny of development proposals "in or likely to affect" SSSIs. The absence from the Forestry Commission guidance of similar emphasis on the need for careful scrutiny of proposals not in but close to or likely to affect an SPA was indicative of a failure on the part of the Minister to take that relevant consideration into account. That was reinforced by the absence from the Minister's letter of any reference to the Birds Directive, or the fact that the site to which the proposal related adjoined a Ramsar site and SPA.

Sir Crispin went on to argue that in the circumstances it was not within the proper scope of the Minister's discretion to refuse to direct that there be an environmental assessment. He cited Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Dutch Dykes)(Case C-72/95) [1996] ECJ I-5403 (paragraphs 50, 52 and 53) for the proposition that the Minister had no discretion to refuse to direct that there be an environmental assessment if the Article 2(1) criterion was satisfied. In addition to the points already recorded about the various sources of guidance to which, in his submission, the Minister ought to have had regard, Sir Crispin drew attention to a letter from SNH to the Forestry Authority dated 8 June 1995 (No. 9/4 of process). He submitted that in effect that letter expressed SNH's view that, unless certain modifications which were discussed were implemented, the proposal would have significant effects on the environment. It pointed therefore to the conclusion that the proposal was "likely to have significant effects on the environment" as the only reasonable one.

Mr Campbell submitted that Sir Crispin's submission that no reasonable minister could fail to direct that there be an environmental assessment came up against an immediate difficulty in the fact that none of the relevant authorities (the Forestry Commission, BRC and SNH) had reached the view that one was required. There was nothing in the SNH letter of 8 June 1995 to suggest that they or the Forestry Commission had failed to address the relevant considerations. They had drawn attention to the relevance of the SPA and the Birds and Habitats Directives. They had, quite properly identified precautions which, if taken, would avoid significant effect on the environment. It was not disputed that the SPA was entitled to a high level of protection, and that even although the project lay outside its limits, the presence of the SPA adjoining the project site required to be considered in applying the Article 2(1) criterion. The petitioners' submissions, however, proceeded on the basis of an assumption that the proposal would have significant effects on the environment, but that was not an assumption which the court could make in deciding whether the Minister's decision was unreasonable. There was no relevant guidance which the Minister could be shown to have breached. The Dutch Dykes case was concerned with the setting of thresholds under Article 4(2), and was thus of no direct relevance in the present case. The petitioners' case of unreasonableness was in reality an invitation to the court to review the merits of the Minister's decision.

If all that the petitioners seek to take from the Dutch Dykes case is that the Minister had to apply the Article 2(1) criterion according to its terms, and had no residual discretion to refuse to direct that there be an environmental assessment if he found that the proposal was likely to have significant effects on the environment, the point does not seem to me to be controversial.

The question which must be determined is whether, on the material that has been placed before me, I can properly reach the conclusion that no reasonable Minister could have failed to conclude that the proposal was likely to have significant effects on the environment. I am not persuaded that the guidance material to which Sir Crispin referred demonstrates that the Minister could not reasonably have reached the conclusion which he did. The 100 hectare rule of thumb contained in the Forestry Commission document relates to cases where the proposed planting is in the special area in question. It can readily be accepted that proper regard must also be had to the protection of a special area where the proposal is not actually in it but adjacent or close to it, but it does not in my view follow that, if the case under consideration is one where the proposal is on land close to the special area, the same 100 hectare rule of thumb is applicable as would be applicable if the proposal actually related to land within the special area. It was, moreover, a matter for the Minister to consider whether to treat the fact that the proposal was in an AGLV as demanding the same treatment as if it had been in an Area of Outstanding Natural Beauty.

Nor am I persuaded that the terms of the SNH letter are properly to be construed as indicating that the proposal would be likely to have significant effects on the environment, with such conclusive effect that it can therefore be inferred that the Minister acted unreasonably in refusing to direct that there be an environmental assessment. What is, to my mind, clear is that the SNH letter drew attention to the SPA and to the relevance of the Birds and Habitats Directives. These considerations were therefore clearly before the Minister, as they must in any event be taken to have been, since it was these matters that were at the centre of the representations which the Minister had heard. In so far as the SNH letter drew attention to things which ought to be done to minimise the impact of the proposal, there are two points which can in my view be made. One is that it cannot be assumed that in making those suggestions SNH believed that without them the environmental impact of the proposal would be likely to be "significant". The second is that, if I am right in the view that the Minister ought to address not the proposal as formulated in the original application, but the proposal as modified by the time of his decision, it cannot be said that impacts which SNH thought would be avoided by the taking of steps which they identified had to be regarded as still likely to be occasioned by the proposal as it had evolved by the time it was being considered by the Minister.

There may well be much to be said for the proposition that if full weight was given to the protection of the SPA the proper conclusion would have been that there ought to have been an environmental assessment in this case. That, however, is not the question which is before me. The decision was one for the Minister to make in light of the material which was before him at the time. It was for him to assess that material. It was for him to exercise judgment as to whether any effects identified as likely to flow from implementation of the project were to be regarded as "significant". I can only come to the conclusion that his decision was invalid on the ground of unreasonableness if I am persuaded that no Minister properly addressing the issue could sensibly have taken the view that an environmental assessment was not required. I am not so persuaded.

 

Reasons

Sir Crispin sought to argue that a further ground for setting aside the Minister's decision was to be found in his failure to give proper reasons for it. He referred to three cases (Albyn Properties Limited v Knox 1977 SC 108 per Lord President Emslie at 112; Wordie Property Company Limited v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at 348; and Leisure Inns (UK) Limited v Perth & Kinross District Licensing Board 1991 SC 224 per Lord Justice Clerk Ross at 233) for the test by which the adequacy of reasons for a decision is to be judged. He recognised, however, that the question of the adequacy of the reasons only arises if there is an obligation to give reasons. He recognised that the decision of the Court of Appeal in R v Secretary of State for the Environment and Parcelforce, ex parte Marson [1998] Env LR 761 was against the proposition that a minister deciding whether to order an environmental assessment was obliged to give reasons. He nevertheless adopted the argument in favour of an obligation to give reasons which was rejected in that case.

The adequacy of the reasons given for a decision may sometimes bear on the question of the reasonableness of the decision. The scope for supporting an argument of unreasonableness by reference to the reasons given when there is no duty to give reasons is, however, very limited. In Lawrie v Commission for Local Authority Accounts in Scotland 1994 SLT 1185 at 1190F, Lord Prosser quoted the following dictum of Lord Keith in R v Secretary of State for Trade and Industry, ex parte Lonrho plc [1989] 1 WLR 525 at 539-540:

"The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision";

and added:

"Mere silence as to reasons does not support a suggestion of irrationality."

In my opinion, the attack on the Minister's reasons in the present case fails for want of a duty to give reasons. I see no reason to differ in that respect from the Court of Appeal in Marson. It is therefore unnecessary to examine the reasons, if there can properly be said to be any, expressed in the Minister's decision letter of 30 November by reference to the criteria by which the courts judge the adequacy of reasons which the decision-maker is obliged to give. In so far as Sir Crispin may at times in his submissions have sought to bolster his argument against the reasonableness of the decision by reference to the inadequacy of the reasoning expressed, that too, in my view, fails. The situation, in my view, falls short of that contemplated by Lord Keith in Lonrho.

 

Conclusion

In the result, I am not persuaded that the petitioners have made out any of the grounds on which they challenged the validity of the Minister's decision. I shall therefore:

  1. of consent, repel the respondent's second plea-in-law;
  2. sustain the respondent's sixth plea-in-law, repel the petitioners' first, second and third pleas-in-law, and refuse the decrees of declarator and reduction and the order for reconsideration sought in Article 3(a), (b) and (c) of the petition; and
  3. of consent, repel the petitioners' fourth plea-in-law and refuse the decree of declarator sought in Article 3(d) of the petition.

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