THE QUEEN ON THE APPLICATION OF v ROSE MALSTER [2001] EWCA Civ 1715

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(Mr Justice Sullivan)

[2001] EWCA Civ 1715

Case No C/01/1943

Venue Royal Courts of Justice, Strand, London WC2, Wednesday, 31st October 2001

Between

THE QUEEN ON THE APPLICATION OF

ROSE MALSTERApplicant

IPSWICH BOROUGH COUNCILRespondent

IPSWICH TOWN FOOTBALL CLUB

Interested Party

Before

Lord Justice Pill

Lord Justice Robert Walker Mr

MISS E. SHARPSTON Q.C. and MR. M. EDWARDS (instructed by Richard Buxton, Cambridge) appeared on behalf of the Applicant.

MR. J. LITTON (instructed by Ipswich Borough Council) appeared on behalf of the Respondent.

MR. D. ELVIN Q.C. and MR. J. MAURICI (instructed by Messrs Ashurst Morris Crisp, London, EC2) appeared on behalf of the Interested Party.

Date 31 October 2001

LORD JUSTICE PILL:

This

[1]is an application for permission to appeal against a judgment of Sullivan J given on 17th August 2001. He refused an application made by Mrs Rose Malster to quash a grant of planning permission made on 14th May 2001 by the Ipswich Borough Council to the Ipswich Town Football Club for the redevelopment of the north stand at the club's Portman Road stadium. The judge refused permission to appeal against his order.

[2]The judgment is a detailed and comprehensive one and it is not necessary, for the purpose of determining the applications before the court, to set out the facts in detail. I adopt the statement of the factual background which is included in the judgment of Sullivan J.

[3]What is sought is permission to appeal and also the question of a reference to the European Court of Justice under Article 234 of the Treaty is raised. This court is a court of last resort if permission to appeal is refused. It is submitted that the court should not refuse permission without a reference to the European Court of Justice. The two points taken by the applicant.

[4]The first, and that on which a reference is sought, is that the planning permission is fatally flawed, in that it should not have been granted without there first being an environmental impact assessment as provided by Directive 85/337/EEC as amended by Directive 97/11. The second point raised is that the Council in granting permission have failed to have regard to and comply with

Article 8 of the European Convention on Human Rights

, now incorporated into English law.

[5]Article 2 of the Directive provides at paragraph 1 that:

"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 a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4."

[6]Article 4 divides projects into two categories which are listed in Annex 1 and Annex II. With respect to those in Annex II, Member States shall determine, through a case by case examination or thresholds or criteria set by the Member States, whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Article 4.3 provides that when a case by case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. By virtue of Annex III, the selection criteria referred to in Article 4.3 are(i) the characteristics of projects, one of those being the size of the project;

(ii) the location of the projects, which includes a reference to densely populated areas, and

(iii) the characteristics of the potential impact. That provides, insofar as material, that: "The potential significant effects of projects must be considered in relation to criteria set out under 1 and 2 above, and having regard in particular to: - the extent of the impact, (geographical area and size of the affected population)..." and, also as criteria, the probability of the impact, the magnitude and complexity of the impact, the duration, frequency and reversibility of the impact.

[7]Put as a brief summary, the effect of the proposed stand is to cast a shadow upon a residential area near it. It is in that residential area, put by counsel on the applicant's behalf as a narrowly circumscribed residential area, where the applicant lives. The judge has set out at paragraphs 71 to 73 of his judgment the area which he had in mind and the effect which the project would have on particular residences. It appears that the judge took into account not only the applicant's residence but others in the immediate area, though it is right to say that in the case of some of them arrangements have been made which are satisfactory to the residents. In relation to a hostel on the Sir Alf Ramsey Way, the Council were not prepared to grant permission unless certain remedial steps were taken. They have now been taken to the satisfaction of the planning authority.

[8]Miss Sharpston QC for the applicant has referred the court to diagrams showing the shadowing effect of the proposed stand at the equinox. I need not set out in detail the technical evidence as to that. There is no dispute about it. I briefly refer to paragraph 71 to give an indication of the issue:

"The council's normal planning standards would not be met at the hostel and at number 43. Although there would be increased shadow in the garden of number 42, the planning standards would still be met.. . On 21st December (winter solstice) the two-tier stand would obviously cast a much longer shadow. But the houses at the southern end of the terrace, including number 42, would be in shadow in any event from the existing buildings, including the recently demolished northern stand."

[9]The main issue before the judge, as agreed at that stage and also before this court, is the shadowing effect, though Miss Sharpston does seek to draw attention to the other effects which the presence of this large structure has upon local amenity. The case before the judge was debated very largely upon the question of shadow. Miss Sharpston submits that an environmental impact assessment should plainly have been ordered. In support of that submission she relies upon passages in the documents, including a passage in the report of the planning officer which led to the relevant decision. She refers to the fact that, in a letter sent to the planning committee shortly before the decision was taken, a representative of the local residents set out carefully and in detail the effect of the proposed stand upon the light at the premises and the effect which the loss of light allegedly would have. Having set out the factors involved, the planning officer stated (page 273 of the bundle):

"On balance, given the substantial improvements to the locality which would occur as a result of this proposal and the wider benefits of the new stand to the town and its sporting context, the proposals are considered to be acceptable in planning terms, provided an agreement can be reached over the hostel. There is no escaping that this is a large building that will be a significant feature in the area, but it is not considered that any adverse effects on nearby residents are so significant as to warrant refusal of permission."

[10]Miss Sharpston relies upon the planning officer's use of the word "significant" as indicating that he must have been of the opinion that the project would have a significant effect on the environment. I am unable to accept that submission. It does not follow from the fact that the structure would be a significant feature in the area that it does have a significant effect on the environment within the meaning of Article 2 of the Directive.

[11]It is further submitted that the judge at paragraph 55 of his judgment implicitly accepted that there was a significant effect on the environment. Paragraph 55 reads, so far as is material:

"Pausing there, it is relevant to note that this is not a case where it is suggested on behalf of the claimant that there is likely to be any significant effect on the environment apart from the shadow effect of the building."

[12]I do not read that as an acceptance by the judge that the shadowing effect has, in the judge's view, a significant effect on the environment. All the judge is saying when making that statement is that it is not suggested on behalf of the claimants that any other factor is to be taken into account in considering whether the project has a significant effect on the environment. In passing, I add that the judge's approach was plainly that it was the shadow effect on which reliance was being placed in support of the submission that the planning permission was defective in the absence of an environmental impact assessment.

[13]The next submission is that the judge accepted that the impact of the project upon the claimants' property was severe. Reliance is placed first on paragraph 79 of the judgment:

"In reality, there is a severe, but highly localised, shadowing effect upon a relatively few properties, all of which, apart from the hostel, have their main aspect facing east/west towards the park. Insofar as it is a matter for my judgment, that does not, in the context of the Regulations, amount to a likely significant effect on the environment such as to warrant an EIA."

[14]Paragraph 93 provides, insofar as is material:

"Understandably, Miss Sharpston points to the fact that in the present case the claimant's interest is far more direct and the impact upon her property is severe. That is undoubtedly true..."

[15]In relation to paragraph 79, it is submitted that the judge's two statements contradict each other. Once the judge accepts that there is a "severe" shadowing effect upon properties, even if they are relatively few, it is not open to him to hold otherwise than that there is a significant effect on the environment within the meaning of Article 2. It is submitted that the use by the judge of the word "severe" in paragraph 93 has the same effect. Once the judge accepts that there is a severe impact, albeit only on a single property, it is not open to him to hold that the project has no significant effect on the environment. Miss Sharpston has attempted to construct a submission, on the basis of the documents to which she referred, that once one accepts that there is a significant effect in fact, then it must follow that there is a significant effect in law. On the basis of those documents I do not accept, and I do not accept that it is arguable, that either the planning officer or the judge had accepted, by the statements they made, that the project will have a significant effect on the environment within the meaning of Article 2. It is an entirely tenable proposition that the effect on a particular property or a particular piece of land may be severe without the threshold contemplated by Article 2 being met.

[16]Miss Sharpston then makes the general submission, rather than that based on the language used, that, because the impact on a particular property is severe, it must follow either that there is a significant effect on the environment or that the case is one which the court should refer to the European Court of Justice. The questions which it is proposed should be put are set out in Miss Sharpston's skeleton argument:(1) What are "significant effects" for the purpose of the EIA Directive?

(2) What is the extent and meaning of the term "environment", the protection of which is the raison d'etre of the EIA Directive?

[17]Miss Sharpston refers to the decision of the European Court of

Justice in CILFIT (6th October 1982) and the statement at paragraph 11:

"If, however, those courts or tribunals [that is the domestic courts] consider that recourse to community law is necessary to enable them to decide a case, article 177 [that is the predecessor of 234] imposes an obligation on them to refer to the Court of Justice any question of interpretation which may arise."

[18]Miss Sharpston has stressed the need for a uniform approach to the Directive and an autonomous interpretation, as expressed in decisions of the European Court. The question of discretion does not arise, she submits. Upon the assumption that the project has a severe effect upon a property or properties, albeit they are very limited in number and extent, an environmental impact assessment is required. There must at least be a doubt about that and the court should not refuse permission without obtaining the guidance of the European Court as to whether, as a matter of law, a limited impact, an impact which is severe but upon a limited area, is or is not capable or is necessarily an impact which has a significant effect upon the environment.

[19]My Lord, Laddie J, put to Miss Sharpston in the course of argument whether her submission would be sustained in a situation where there was a square foot of land which was rendered dark by the presence of the project. My Lord had in mind an unremarkable square foot of land and not a square foot which might have some unique or extremely rare plant upon it. Miss Sharpston's response was that the impact would not require a reference to the court. Her submission was that there is no magic number of properties which must be involved for there to be an environmental assessment. One must look at the circumstances of the particular case. I agree with that part of her submission. The European Court of Justice does not give judgments on academic points any more than do the courts of England and Wales. A reference to them is appropriate if, upon the facts of the particular case, doubt does arise as to how a document, such as the present Directive, is to be construed.

[20]I accept that situations could arise in which the point which it is sought to raise, the severe effect on a limited area, might involve a reference to the court for guidance as to how the Directive should be construed. In my judgment, that need does not arguably arise upon the present facts. The Directive gives guidance as to how authorities in Member States should construe and apply the Directive. I have referred to the relevant parts of it. Understandably, Miss Sharpston refers to the size of the project, a relevant factor under Annex III, to the fact that it is, arguably at least, in a densely populated area, and to the fact that the impact of the proposed stand will inevitably happen and is irreversible in its impact. In my judgment, an important characteristic of potential impact which falls to be considered and which is a most relevant one in present circumstances is that under paragraph 3,"the extent of the impact, geographical area and size of the affected population."

[21]Applying the Directive, the authority were entitled to have regard to the limited extent of the impact by way of area and the small numbers of those affected. In my judgment, it was within the power of the authority, construing and applying the Directive, to take the view they did. The project, though a large one, was, in all the circumstances contemplated in the Directive, one upon which they could properly take a decision without having an environmental impact assessment.

[22]Miss Sharpston makes the point that the court has to consider whether an assessment should be ordered. It is not material to go on to consider what the effects of that assessment might have been. The important thing is that the procedure laid down in the Directive should be followed, with the safeguard which it provides for those who may be affected by a project. I bear that in mind. In my judgment, the authority were entitled, in the circumstances of this case, to reach the decision they did, without ordering and requiring an environmental impact assessment. This is not a case where, upon the facts, it is appropriate for this court to refer the matter to the European Court of Justice. As I said, there may be a case where it is appropriate to seek guidance as to the application of the disputed phrases in the Directives, but upon the present facts it is open to this court to make a decision and to take the view, as I would take, that it is not arguable that the decision complained of can be impugned by reason of the Council's failure to require an environmental impact assessment.

[23]I bear in mind the fact that Directives are to be given a wide scope and a broad purpose, indeed a very broad purpose - see the Dutch Dykes case to which we have been referred. I do not regard the view that I have formed as in any way weakened by that principle which I have sought loyally to apply in reaching the conclusion I have.

[24]The second point, made briefly in writing, developed more fully in oral submissions, is that the Council breached

Article 8 of the Convention

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

[25]Miss Sharpston puts the point in this way. Planning decisions are taken by public authorities in the public interest. The Convention right in Article 8.1 guarantees the right to respect for an individual's private and family life, his home and his correspondence. Reference is then made to Article 8.2. The submission is that the balancing exercise required under planning law will not necessarily involve the same considerations as the balancing exercise required by Article 8.2. Reference was made to the case of Buckley and to the recent case in the European Court of Justice of Hatton, the case involving night flights from London Heathrow Airport. It was accepted in that case that the nuisance involved in the high volume of night flights was capable of being a breach of Article 8.1. It was also held by a majority that, in striking the balance required by Article 8, insufficient steps have been taken by the United Kingdom authorities.

[26]I consider that to be a very different case from the present one. I agree with the approach of the judge to this question as set out at paragraphs 88 and 89 of his judgment. It is right to say that the Article 8 issue was raised on behalf of local residents. It is accepted that there is no express reference to Article 8 in the documents upon which the Council made their decision. It is submitted that there must be an analysis with specific reference to Article 8. I do not accept that to be an arguable submission in the circumstances of this case. The planning processes which were followed in this case plainly had regard to the right which is enshrined in

Article 8 of the Convention

. It is plain from a reading of the documents that the Council did have in mind the effect which the project would have upon local residents, including the effects which could potentially constitute a breach of Article 8. It is plain that they performed a balancing exercise and did so in a way which came down in favour of permitting the project.

[27]I add only that in most cases planning considerations, as developed in the law of England over the years by statute and by the judges, usually will take account of Article 8, which of course has been in existence, though not a part of English law, since 1950. I accept that there may be cases such as Hatton where, in granting a planning permission, great care is required to consider article 8. Attention must be given to the rights of residents in all cases, but I am far from persuaded in this case that it is arguable that there is any independent and discrete remedy under Article 8 upon the facts. I should add that I have not set out the judge's reasoning upon the first EIA issue but I agree with it.

[28]The judge refused permission to appeal on the ground that there was no real prospect of success and no important principle was involved. He went on to reject the application on the basis of undue delay and prejudice. Counsel on behalf of the proposed respondents have indicated that, if the court is minded to decline permission to appeal and to decline to refer the case to the European Court of Justice, they would not seek a ruling upon the question of delay and prejudice. Accordingly, I would give no ruling on those issues. For the reasons I have given, I would refuse the application for permission to appeal and decline to refer the questions posed to the European Court of Justice.

LORD JUSTICE ROBERT WALKER: I agree.

[30]MR. JUSTICE LADDIE: I agree.

Order

Application refused; first respondent to have their costs of the application; Ipswich Football Club to have half their costs; section 11 order against the Legal Services Commission; question of any contribution which the applicant is to be required to make to be made to the costs judge; authorisation given to request transcript of proceedings. (Order not part of the judgment of the court)