Friends of Basildon Golf Course, R (on the application of) v Basildon District Council [2010] EWCA Civ 1432

[2010] EWCA Civ 1432

Case No C1/2009/1035

COURT OF APPEAL (CIVIL DIVISION)

[2009] EWHC 66 (Admin)

ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT

THE HONOURABLE MR JUSTICE WYN WILLIAMS

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/12/2010

Before

LORD JUSTICE PILL

LORD JUSTICE CARNWATH

LORD JUSTICE RIMER

Between

The Queen (on the application of the Friends of Basildon Golf Course)Appellants

Basildon District CouncilRespondents

Basildon Golf Centre LimitedInterested Party

Charles George QC and Jeremy Pike (instructed by Tilbrook’s Solicitors) for Appellants

Nathalie Lieven QC and Galina Ward (instructed by Legal Services, Basildon District Council) for Respondents

Hearing Hearing dates : 13 & 14 October 2010

Judgment

Lord Justice Pill :

[1]This is an appeal from a judgment of Wyn Williams J dated 23 January 2009 whereby he refused an application by the Friends of Basildon Golf Course (“the appellants”) to quash a grant of planning permission by Basildon District Council (“the respondents”) for works at Basildon Golf Course. The respondents are the owners of the land which they had leased to Basildon Golf Centre Limited (“the interested party”), a part of the Jack Barker Golf Group. The respondents, jointly with the interested party, planned a development on the land. It was described by the respondents in correspondence as a “joint venture” and a lease was granted to the interested party by the respondents.

[2]An application for planning permission was submitted by the interested party on 22 March 2007:

“Development of golf club house, driving range, maintenance building, ancillary facilities and associated landscaping/engineering work.”

[3]On the same day that the interested party submitted its planning application, an officer of the respondents, Mr Clive Simpson, Manager of Planning Services, produced a Screening Opinion (“the Opinion”), as required by the Town & Country Planning (Environmental Impact Assessment) (England & Wales) Regulations 1999 (“the 1999 Regulations”). Mr Simpson concluded that an environmental impact assessment under the Regulations was not required.

[4]Planning permission was granted, subject to conditions, on 15 October 2007 for “construction of new clubhouse and maintenance sheds and the development of a golf driving range”. It was proposed to tip a very substantial amount of waste onto the site. The permission was for phase 1 of a proposed two phase development covering in total 65.6 hectares. Phase 1 was 11.3 hectares in extent. Included in phase 1 is a new club house and car park, and a driving range. Golf course holes 1, 9 and 18 are to be remodelled though not expressly mentioned in the permission. The permission did not refer to the “associated landscaping/engineering works” mentioned in the application, in spite of the amount of waste involved. The redevelopment of the remainder of the 18 hole course would come within phase 2. The splitting into two phases had been agreed in about August 2006.

[5]The appellants submit (ground 1) that the respondents erred in law in deciding that an environmental impact assessment (“EIA”) was not required. It is further submitted (ground 2) that, even if the decision was lawful when it was made, the respondents were under a duty to revisit that decision before granting planning permission because further information had become available. The third ground is that the respondents erred in law in deciding that the application was not a “county matter” which should have been determined by Essex County Council, or, alternatively, that the respondents erred in failing to discuss the application with officers of that council before granting permission.

[6]The obligation on planning authorities to consider whether an EIA is required arises from Directive 85/337. In the recent case of R (on the application of Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 2, 30 April 2009, the European Court of Justice (“ECJ”) referred to the “obligation on the Member States, set out in article 2(1) of Directive 85/337, to make projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment subject to an assessment”. The ECJ added, at paragraph 51:

“It is thus clear from the objective of Directive 85/337 that the competent national authorities, when they receive a request for development consent for an Annex II project, must carry out a specific evaluation as to whether, taking account of the criteria set out in Annex III to that directive, an EIA should be carried out.”

[7]Having referred to its earlier decision in Commission v Italy

[2006] ECR I-11025

, the ECJ stated, at paragraph 55:

“. . . the determination by which the competent authority takes the view that a project’s characteristics do not require it to be subjected to an EIA must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening, carried out in accordance with the requirements of Directive 85/337.”

At paragraph 56, the ECJ added that it did not follow that “a determination not to subject a project to an EIA must, itself, contain the reasons for which the competent authority determined that an assessment was unnecessary”. Third parties, however, “must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary”. (paragraph 57).

The 1999 Regulations

[8]The 1999 Regulations implement the Directive. By virtue of regulation 2, “EIA application” means an application for planning permission for EIA development and “EIA development” means development which is either:

“(a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;”

It is common ground that the proposed development is schedule 2 development under regulation 2(1) either, and arguably, as an installation for the disposal of waste and, undoubtedly, as a golf course and associated development.

[9]Regulation 3 of the 1999 Regulations applies to every EIA application received by the authority with whom it is lodged on or after the commencement of the Regulations (regulation 3(1)(a)). Regulation 3(2) provides:

“The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”

[10]Under regulation 4(2)(b) it is open to a planning authority to adopt a Screening Opinion to the effect that the development is EIA development. Regulation 4(7) provides that the Secretary of State may make a screening direction irrespective of whether he has received a request to do so. A screening direction is a direction by the Secretary of State as to whether development is EIA development.

[11]Regulation 4(5) provides:

“Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.”

[12]Under Schedule 3, which implements Annex III of the Directive, the characteristics of the development must be considered, having regard to particular factors including “the accumulation with other development”. The environmental sensitivity of geographical areas likely to be affected by the development must be considered having regard to particular factors, including “the relative abundance, quality and regenerative capacity of natural resources in the area”. The characteristics of the potential impact of the development must also be considered. Whether there are “significant effects on the environment” (regulation 2) is to be assessed against these criteria.

Circular 02/99

[13]Guidance about Screening Opinions is provided in Circular 02/99, Environmental Impact Assessment. It is stated in paragraph 55: “Before submitting an application for planning permission, developers who are in doubt whether EIA would be required, may request a screening opinion from the Local Planning Authority (Regulation 5(1))” [1999 Regulations].

[14]Paragraph 56:

“The Authority should first consider whether the proposed development is either schedule 1 development or schedule 2 development that is likely to have significant effects on the environment by virtue of factors such as its nature, size or location, taking into account the selection criteria in schedule 3 (Regulation 4(5)). . . . Authorities should bear in mind that what is in question at this stage is the broad significance of the likely environmental effects of the proposal.”

[15]Paragraph 57:

“. . . When adopting an Opinion that EIA is required, the authority must state the full reasons for their conclusion clearly and precisely (Regulations 4(6)). . . . This will help [the developer] to prepare the ES by indicating those aspects of the proposed development’s environmental effects which the authority considers to be likely to be significant.”

[16]Paragraph 66 provides:

“A Screening Opinion can only be adopted on the basis of the information provided at the time it was given. There may, exceptionally, be cases where an Opinion has been given that EIA is not required for a proposed development, but it subsequently becomes apparent (for example, from further information submitted in support of a planning application) that it is nevertheless an EIA application. In such cases, the procedures . . . will apply as they apply in cases where no prior Screening Opinion has been adopted.”

The Screening Opinion

[17]The Opinion stated:

“This screening opinion relates to proposals to carry out alterations to Basildon Golf Course. The proposals comprise the provision of a golf driving range and new clubhouse and associated landscaping and engineering works. The associated works will involve the importation of inert material to remodel areas of the existing golf course by creating landscaped bunds and mounds. The development is to be undertaken in two phases and the first application deals only with the first phase. A subsequent application will be submitted for the re-modelling of the remainder of the course. However in accordance with the Regulations this screening opinion will consider the impact of all the proposed works.”

In the last sentence, the Opinion purported to comply with the requirement in Schedule 3 to consider “the accumulation with other development”.

[18]It was accepted in the Opinion that the proposal came within the category of “installations for the disposal of waste” but the conclusion was:

“In this case the inert material is being brought to the site to create the landscaped mounds and not as a waste operation. The total amount of inert material to be brought to the site will be less than 50,000 tonnes per year for all phases of the development.”

[19]Under the heading “Characteristics of the Development” it was noted that “the proposal will be restricted to the existing golf course. It will not impact on natural resources and the material used will be inert material from local construction sites”. Under the heading “Location of the Development”, it is stated that the site “is not within one of the designated sites defined in regulation 2(1) as a sensitive area”. A site of Special Scientific Interest is separated from the golf course by a busy road. Beyond that, the only reference in the Opinion to ecology is that “the application is to be supported by a detailed ecological report which will include a survey of the wildlife on the site and details of a mitigation strategy”.

[20]The conclusion in the Opinion was:

“The council has considered the proposed development against the criteria set out in Schedule 3 of the Regulations and has decided that an EIA is not required.”

[21]An issue in the case, which it will be necessary to consider again under ground 3, but has some general relevance, is whether the proposed development can properly be regarded as a golf course and club redevelopment or whether it was primarily a waste disposal operation. Concern over this issue, in a more general sense but also by reference to Basildon Golf Course along with other sites, was raised in a letter of 31 July 2008, that is well after the grant of permission, from the Parliamentary Under Secretary – Climate Change, Biodiversity and Waste, in the Department for Environment, Food and Rural Affairs, to the Parliamentary Under Secretary for Communities and Local Government. It was stated:

“. . . I am persuaded that the size and scale of the proposed developments are out of proportion to what might reasonably be anticipated in the local areas in which this is happening. I believe there may be some substance in the claims made by local residents that developers are actively seeking to use landscaping as cover for significant waste disposal operations and that local authority planners are being misled over the real purpose of the proposals.”

[22]The Parliamentary Under Secretary added:

“. . . I believe there are serious doubts whether developments of this size and scale are in fact genuine waste recovery and would go ahead if non waste materials were used instead.”

Comments were invited.

[23]The appellants adopt the reasoning in the letter to support their grounds of appeal. Official concern was repeated in a circular letter from the Department for Communities and Local Government to planning authorities, dated 20 January 2009, under a heading “Large–Scale Landscaping Development Using Waste”. Essex County Council Guidance Notes have also drawn attention to the need to consider whether “landscaping proposals are needed for the development or whether the associated importation of construction and demolition waste is for the purpose of “recovery” (associated with a genuine use in construction) or is for the ‘disposal’ of waste on land i.e. landfill”.

[24]In relation to the statement in the Opinion that the total amount of inert material to be brought to the site will be less than 50,000 tonnes per year, it is necessary to consider further evidence that has become available. A report from the interested party dated March 2007, that is the same month as the Opinion, referred to approximately 120,000 cubic metres of inert material being imported into the site. It was stated that the rationale was “to create a natural looking golf course and teaching facility and to shield less natural forms of development”. There is now unchallenged evidence (statement of 8 July 2010 from Mr John Toplis, the appellants’ secretary) that, “for the first phase of the work, it was planned to import 180,000 tonnes of waste over a period of 16 months, equivalent to an annual rate of importation of 135,000 tonnes per annum. And the whole development was scheduled to last for 3 years during which time 468,000 tonnes of waste were to be imported – an annual rate of 156,000 tonnes per annum”. The figures appear to be consistent with each other, though some are expressed by weight and others by volume.

[25]Since the Opinion was issued, Mr Simpson has also made a number of statements for the purposes of this litigation. The statements are dated 8 February, 13 May and 24 October 2008 and 9 July 2009. In the statement dated 24 October 2008, Mr Simpson accepted that, for the whole development, the amount of inert material to be brought to the site, expressed by volume, was 312,000 cubic metres. He apologised for misquoting in the Opinion the amount of inert material. He stated that he was not especially concerned to check the volumes and the error was not material to his decision that an EIA was not required. It is accepted that the bunds created by depositing waste would be up to 6 metres in height, that is their height around the driving range in phase 1.

Report to Committee

[26]It is relevant to refer to the facts stated in the officer’s report to Committee when the decision to grant planning permission was subsequently made in September 2007:

“The proposed mounding would result in an increased height of some 5 metres above existing ground level on the north side, closest to the residential properties. Similarly, the proposed mounding on the east side would increase the height by as much as 5 metres. Furthermore, the contouring of the range itself would result in an increased height above existing ground level of up to 5 metres.”

[27]In his statement of 13 May 2008, Mr Simpson said that he had had available a plan showing the remodelling of the whole of the golf course. It included details of a typical cross section through the landscape mounds, which showed a mound 3 metres high. He maintained that the re-contouring of the land would enable the interested party to create a golf course that was easier to play, in that it would keep balls in play and less prone to be lost. This point was made in the report to Committee. The proposal did not involve land raising for its own sake, he stated.

[28]Having referred to the officer’s report, I quote from its general conclusions:

“These proposals obviously would result in a significant change to the appearance of the Golf Course and the introduction of facilities that may well significantly increase the amount of activity associated with the Golf Course. In addition, there are obvious concerns regarding the impact of the importation of soil, the re-contouring and raising of ground levels, the loss of trees and the impact on amenities of nearby residents. . . . It is considered that the effect on visual amenities together with the environmental and ecological concerns, particularly with the loss of trees and the proximity of the driving range to residential properties, are very significant factors in the determination of this application. The fact that this is the first phase of similar re-contouring proposals for the remainder of the Golf Course is also particularly salient.”

It was said that “the proposed re-contouring and mounding enhanced and simplified the course”. The overall long-term benefits were considered to outweigh the negative aspects of the development and the grant of planning permission was recommended. Submissions Ground 1

Submissions

[29]On behalf of the appellants, Mr George QC submits that the Opinion was defective in its understatement of the amount of waste to be deposited both annually and in total and in the absence of any reference to the substantial and widespread bunding to be created, with its environmental effects. The importation of material was to be at the rate of 135,000 tonnes per annum during phase 1 and 156,000 tonnes per annum overall rather than the 50,000 tonnes per annum stated in the Opinion. No proper consideration can have been given to whether an EIA was required, it is submitted, and the respondents should be required to prepare an adequate Opinion. In the absence of an adequate Opinion, there was no sufficient consideration whether an EIA was required and no valid permission.

[30]The second basis of attack under ground 1 is that the Opinion is inadequate in its treatment of ecological issues. There is no satisfactory evidence that, when he provided the Opinion, the relevant reports were available to Mr Simpson and were considered by him. An Ecological Assessment Report prepared for the respondents by consultants is dated February 2007, only shortly before the Opinion was given and claimed by the respondents to have been in draft. There had however been substantial earlier reports, though there is an issue as to whether Mr Simpson saw some of them or had regard to them. He accepts not having considered a report of July 2006. Reports dealing with the great crested newt survey, the invertebrate survey and the reptile survey and population assessment report were not available until well after the Opinion had been issued.

[31]I do not propose to attempt to catalogue precisely what material was available to Mr Simpson and what was considered by him when he issued his Opinion. There is no doubt that some of it was not available and that substantial further material has been made available by the respondents on being pursued on behalf of the appellants. Staff changes may have contributed to the difficulty. In a letter dated 16 June 2010, the respondents stated that material, plainly relevant to the case, “was not provided to the planning department”, though that may well have been written in error. There has been further evidence and disclosure since the decision of the judge.

[32]Mr George referred to documentary material to support his case, and I summarise the main references. On 18 January 2006, the respondents sent to the interested party a statement entitled “Basildon Golf Course Summary of Ecological Importance”. It was stated that the western [the word eastern was clearly intended] end of Basildon Golf Course is designated as part of a County Wildlife Site “Vange Hill”. It is stated that the site “is already of good biodiversity interest, but has the potential with some tweaking to provide an extremely valuable biodiversity resource for the district . . .” It is stated that Vange Hill “represents one of the few woods in the south-east of the District, at the edge of a golf course which, itself has considerable wildlife value amongst an increasingly urban environment”.

[33]In a letter dated 25 May 2006, the council stated, in relation to the proposed development:

“Firstly the requirement of an ecological survey is an absolute must and it will have to take account of areas beyond the site boundaries because the protected species legislation requires adjoining habitats and populations be taken into consideration.”

[34]A report of July 2006, which Mr Simpson did not see before providing the Opinion, referred, in its conclusions, to the positive enhancement opportunities in the long term but added:

“However, short-term impacts associated with the scheme result in breaches of legislation associated with protected species including badgers and their setts, native bat species and their roosts, nesting birds, great crested newts and native reptile species.”

It is stated that “a detailed mitigation and management plan for the entire site that outlined each phase of works will be required”. Further survey work is recommended, a bat emergence and activity survey, a great crested newt population assessment survey, a reptile population assessment survey and a badger activity survey.

[35]There is an issue as to whether Mr Simpson had considered the February 2007 report, expressed to be a draft and dealing only with phase 1, when he issued his Opinion. Bats, great crested newts, reptiles, water voles, badgers and invertebrates were considered in it. It is stated at 3.2.4 that the likelihood of great crested newts being supported by the terrestrial habitats on site was considered to be very low. It was accepted that there were two main badger sets and a number of outlying sets in the development proposed for phase 2 and badger activity was much more prevalent there. Tables in the report considered the potential effects of the development and mitigation proposals. It was accepted in these tables that there was potential for contravening the legislation protecting wildlife with respect to birds, great crested newts and reptiles. In the conclusion to the report it was stated:

“No significant adverse effects upon valued ecological receptors are anticipated as a result of the proposed scheme. However, short-term impacts associated with the construction phase may result in breaches in legislation associated with protected species including nesting birds, great crested newts and native reptile species.”

[36]For the respondents, Miss Lieven QC submits that Mr Simpson had sufficient information to draft the Opinion and it was one he was entitled to issue. Miss Lieven relies on the approach to Screening Opinions stated by Ouseley J in Younger Homes (Northern) Ltd v Secretary of State

[2003] EWHC 3058

Admin:

“59. . . The principal point which emerges from the authorities cited is that the question of whether a local planning authority has sufficient information in order to be able to reach a proper judgment on his screening opinion is a matter for the relevant decision-maker whose view is challengeable only on normal judicial review grounds. It is very much a matter of planning judgment, which depends on the facts of the given case. It may not therefore be very persuasive to take the circumstances of one case, such as the BT case [[2002] JPL 993], and to try to use it as a measure by which other cases had been judged. 60. What was said in Jones [[2003] EWCA Civ 1370] is particularly apposite: the planning authority must have sufficient information to be able to reach the relevant conclusion; it is not necessary that all uncertainties be resolved or that a detailed and comprehensive assessment be made of impacts at the screening opinion stage. That stage cannot turn into something equivalent to the environmental statement itself. An understanding of where the uncertainties lie and of the likely range of those uncertainties may be necessary in order to be satisfied that the development is not likely to have significant environmental effects. The nature and range of the uncertainties may make it impossible to reach the conclusion that development is not EIA development. Equally, it is also possible to have sufficient information to reach a decision on the screening opinion, even though there are uncertainties and further surveys are required for the final decision on the development permission. The TIA is an example of that here. It may well be possible in any given case to conclude that it is unlikely that uncertainties will be resolved in such a way as to yield a significant environmental effect. The availability of standard conditions or other straightforward and obvious remedial measures may well bite on that conclusion as well.”

[37]Miss Lieven accepts that, when expressing the Opinion, it was necessary to have regard to the entire proposal for development, including phase 2, but for phase 2 the same level of information was not required, she submitted. Phase 2 would be considered, in due course, on its merits. There was sufficient information to reach a decision, even though further surveys were required for the final decision of the respondents on the development proposal. In his statement of 13 May 2008, Mr Simpson accepted that the ecological reports submitted with the planning application dealt only with phase 1 but said that he was aware that other ecological reports had been commissioned. He had no reason to believe that issues would be raised that could not be dealt with by appropriate mitigation measures.

[38]In urging reliance on Mr Simpson’s post-decision statements, Miss Lieven relies on the decision of the ECJ in Mellor. The ECJ considered whether Member States are obliged to communicate to the public the reasons for a determination not to subject a project to an EIA. Following the paragraphs cited earlier in this judgment, the court stated, at paragraph 59:

“Consequently, in such circumstances, the competent national authorities are under a duty to inform them [interested parties] of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request. . . . 60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made.”

[39]This passage is claimed to support reliance on Mr Simpson’s post-decision reasoning. There is no doubt that the court may look at contemporaneous documents which may throw light on a decision. Post-decision documents may also be helpful in some situations to explain a decision, over elaboration in the Opinion itself not being necessary or appropriate. Mr Simpson’s entitlement to attempt to justify his decision in post-decision statements, and his entitlement to express an opinion that post-decision information which became available to him would not have altered his decision, have not been doubted. The reasoning and the decision itself may thereby become clearer.

[40]Mellor does not, however, diminish the care with which post-decision claims by a decision maker by way of rationalisation should be considered and the caution with which they should be scrutinised. Mr Simpson’s attempt to justify his decision and his claim that later information was irrelevant to his decision, or would not have affected it, comes into that category. I do not doubt the good faith with which his statements have been provided, and I note the judge’s finding, when considering the issue on which cross-examination was permitted, that Mr Simpson had not deliberately sought to mislead him, but I am not prepared to dismiss the appeal in reliance on his later written statements that on the further material later available he would inevitably have expressed the same screening opinion.

[41]Miss Lieven relies on correspondence with Natural England, after the Opinion had been issued, to illustrate that an EIA had not been necessary. In a letter dated 17 April 2007, Natural England stated:

“Based on the information provided, Natural England has no objection to the proposed development on the basis of impacts on Basildon Meadows SSSI. Subject to the proposal being carried out in strict accordance with the details of the application. The reason for this view is that we consider that this proposal in isolation will not have a significant effect on the interest features of Basildon Meadows SSSI. However, we are aware that this application is linked to the developer’s aspiration to develop a much larger area of the golf course. The impact of this larger scale of development, including the proposals within the current application, would be likely to result in significant adverse impacts upon Basildon Meadows SSSI. These impacts would include significant hydrological change as a result of landscaping and air pollution impacts caused by increased road traffic, therefore, based on the currently available information, natural England would object to such proposals.”

[42]In a letter dated 14 June 2007, Natural England stated:

“Based on the information provided, Natural England has no objection to the proposed development in respect of legally protected species, provided the mitigation as outlined in the report is incorporated into a permission or part of a suitably worded agreement or planning condition, if necessary.”

[43]The officers of Natural England subsequently changed their minds stating that they would have “given different advice had they seen the draft report relating to the larger proposed development of the whole golf course, when it knew that the application was in fact limited to the clubhouse and driving range”. The respondents replied on 1 July 2010 expressing surprise that Natural England intended to make representations to the court and adding:

“In any event, it seems that your letter has been written without a clear understanding of the difference between the 2006 draft environmental report, which related to a proposed application for planning permission to develop the whole golf course, and the 2007 report (also marked draft, and not a finalisation of the 2006 draft) which accompanied the application in fact made, for development of the clubhouse and driving range area only.”

[44]By letter of 28 July 2010, Natural England stated:

“However, our fundamental point stands: had we been party to all of the information available to your Council (specifically the 2006 report, albeit relating to a wider geographical scope) we would not have withdrawn our objection to the driving range/club house application until the issues regarding survey requirements for legally protected species had been adequately and demonstrably addressed.”

[emphasis in original] In a letter of 29 September 2010, Mr Simpson stated that the stance now taken by Natural England was “in direct contradiction” to earlier evidence.

[45]I would quash the permission on this ground but defer my reasons until I have mentioned grounds 2 and 3.

Ground 3

[46]On the third ground of appeal, I agree with Miss Lieven that the fundamental issue for the respondents was whether the proposed operation came within the Town & Country Planning (Prescription of County Matters) (England) Regulations 2003 (2003/1033) as being the use of land or the carrying out of operations “wholly or mainly for the purposes of recovering, treating, storing, processing, sorting, transferring or deposition of waste or ancillary to any of these purposes” (regulation 2 headed “Operations and uses prescribed as County Matters”). If it was such an operation, the relevant planning authority was the county planning authority, Essex County Council. The issue is not addressed in the report to Committee of 11 September 2007, though the importation of inert material is mentioned. Nor was there reference to the local policies on waste contained in the Essex & Southend Waste Local Plan. In his post-decision statement of 13 May 2008, Mr Simpson stated:

“The emphasis has to be on the wholly or mainly part of the definition and whilst the application sought consent to import inert waste, this was only to provide the bunding and re-contouring and was the main part of the application.”

[47]Mr Simpson gave evidence before the judge but permission to cross-examine was granted only on the waste issue. Permission to cross-examine Mr Simpson about other issues, such as what information he had when he issued the Opinion, was not granted. That was, we were told, because of lack of time. In a long answer, Mr Simpson stated that the decision whether it was a County matter was looked at over a period of time, Mr Simpson’s first involvement being in 2005. He stated that “the issue of whether or not this might be a waste matter potentially was one that was uppermost in my mind because it was clearly an issue”. His decision “sort of unfolded” he said. That being his view, it is surprising that the issue was not clearly marked up in the report to council on which the application was to be considered.

[48]Having said that, I do not propose to express a view on this issue. It is an issue which has achieved prominence, as demonstrated by the ministerial correspondence mentioned at the beginning of this judgment, since the relevant planning decision in this case. Moreover, I would be reluctant to reverse the finding of fact of the judge who heard evidence from Mr Simpson on this issue, including evidence given under cross-examination.

Ground 2

[49]That leaves the second ground on which I also do not intend to make a decision. On my conclusion on ground 1, the question whether the Opinion should have been revisited does not arise. I note, however, that in his statement of 9 July 2009, Mr Simpson stated:

“I am advised that there is High Court authority to the effect that a local planning authority has no power, and is certainly not under a duty, to revisit a negative screening opinion [second ground of appeal]. However, as a matter of course I would consider whether any new information received ought to cause me to change an opinion I had previously reached. I fully considered all of the responses received to the planning application, including that from Natural England, but for the reasons set out above did not see any need to revisit the screening opinion and request a full Environmental Impact Assessment.”

[50]I welcome the statement of Mr Simpson that he would as a matter of course consider whether his opinion ought to be changed on receipt of new information. That approach appears to me to accord with the entire scheme under which EIAs are prepared, when appropriate. It also accords with the guidance given in paragraph 66 of Circular 02/99, cited at paragraph 16 above.

[51]I do respectfully, and without needing to conduct a full analysis in this case, query some of the findings of Richards J in R (Fernback) v Harrow LBC [2002] Env LR 10 to which Mr Simpson referred. Richards J held that, under regulation 7 of the 1999 Regulations, there is no power to adopt a further screening opinion in the absence of a request from the proposed developer and also that a notification to the applicant for permission under regulation 7(2) that an environmental statement is required must, under regulation 7(3), be made within three weeks from receipt of the application or such longer period as may be agreed in writing by the applicant.

[52]It appears to me very arguable that the procedure specified in regulation 7(2) and (3) of the 1999 Regulations, under the heading “Application made to a local planning authority without an environmental statement” applies to a situation “where an EIA application” is before a local planning authority. An “EIA application”, under regulation 2, cited at paragraph 6 above, means an application for planning permission for EIA development. The present application was not treated as an EIA application for EIA development. Indeed, the entire dispute has arisen because both the respondents and the interested party were not treating the planning application as an EIA application. The Opinion decreed that it was not. It would follow that the “3 week” procedure in regulation 7(3), was not intended to deal with the present application but with a situation in which an environmental statement has been required. On this approach, the procedure does not operate in this case and the regulation does not prevent a planning authority from subsequently deciding that a development is an EIA development.

[53]That approach appears to me to be more consistent with the intentions of the Directive and the Regulations with respect to environmental impact assessment. The decision in Fernback has stood for eight years but it may be that planning officers have been following the guidance in the Circular and adopting the same approach as would Mr Simpson in a situation he considered appropriate.

[54]An attempt was made on behalf of the appellants to introduce an entirely new ground of appeal based on the Habitats Directive but the court was not prepared to permit that addition.

Conclusions on ground 1

[55]The Opinion was in my judgment legally defective in its treatment of the imported fill. I accept the submissions made on behalf of the appellants. The amount of waste to be deposited on the site was grossly understated in the Opinion which, as a result, was seriously misleading. Moreover, the impact on the local environment of the deposit of large quantities of waste forming massive and extensive bunds was not mentioned or considered in the Opinion. Mr Simpson issued the Opinion on the same day as the planning application was submitted. If he was aware of the impact of the development at that time, which I respectfully doubt, his consideration of it was legally inadequate. This aspect of the proposed development was not specifically evaluated as required.

[56]I add that lack of consideration of the issue is reflected in the form in which planning permission was granted in September 2007. At that stage, there was awareness of the amount of waste involved, an Environmental Health Service Report of 11 September 2007 noting that a clause in the agreement for a lease stipulated that “not more than 312,000 cubic metres of inert material can be brought in”. The grant of permission did not even mention the “associated landscaping/engineering works” for which permission had been applied and the conditions imposed do not refer to or regulate the scale of deposit involved.

[57]I would quash the planning permission on this ground, there having been no sufficient consideration as to whether an EIA was required.

[58]On the ecological aspect of this application, I have also come to the conclusion, though acknowledging the limited circumstances in which the court may intervene, that the Opinion was legally defective. On the information that should have been available to Mr Simpson, fuller treatment was required. I bear in mind the respondent’s own statement, on 25 May 2006, that an ecological survey was “an absolute must” and the breaches of legislation associated with protected species contemplated in the report of July 2006. Further, the view was expressed in the January 2006 report in the possession of the respondents that Vange Hill could provide an extremely valuable biodiversity resource for the district and that the golf course itself has considerable wildlife value. Mr Simpson has accepted in his statement that he had been informed that there was need for further survey work in relation to a number of species and that need for further survey work led to the decision to split the application into two phases. The additional survey work required for certain species had to be undertaken at specific times of the year which would have delayed the assessment.

[59]This was not a case in which ecological considerations could be dismissed with the single sentence in the Opinion:

“The application is to be supported by a detailed ecological report which will include a survey of the wild life on the site and details of a mitigation strategy”

. That brevity reflects what appears to me to have been an insufficient analysis of the issues which had arisen. Further analysis and specific evaluation were required. On this evidence, an assumption that an EIA was not required because concerns could be left to appropriate mitigation measures was not in the circumstances justified. I am far from saying that an EIA will always or routinely be necessary when protected species such as great crested newts are found on a site.

[60]I would quash the Opinion and it follows that the planning permission must be quashed. The decision that an EIA was not required was not lawful and the respondents should reconsider whether the application was one to which regulation 3 of the 1999 Regulations applies.

[61]I have had difficulty in the course of this appeal in understanding why colours have been nailed so firmly to the mast of declining an EIA. Substantial bunding was contemplated. It had not been doubted, either by the respondents or by the interested party, that substantial further ecological study was necessary before a permission could be granted. It is difficult to understand why a decision that an EIA was necessary should present the psychological barrier it appears to have done. The need for an EIA may of course involve delay, and there may be other factors of which I am unaware, but on any view it was arguable that an EIA was required in this case and the sensible and convenient course might well have been to require one. The decision is for the planning authority to make and I am not doubting that the courts will be slow to interfere with the authority’s exercise of judgment when making that decision but it may not always be in the interests of the parties or of the public if a tough stance against requiring an EIA is readily adopted.

[62]What is clear is that the decision taken on a Screening Opinion must be carefully and conscientiously considered and it must be based on information which is both sufficient and accurate. The Opinion need not be elaborate but must demonstrate that the issues have been understood and considered.

[63]I would allow this appeal and quash the planning permission. As will have appeared, the information before this court is considerably fuller than that before the judge and the arguments based on it have developed substantially. Lord Justice Carnwath :

[64]I agree that this appeal should be allowed on ground 1. I wish to add a short comment of my own, particularly in view of the fact that I initially refused permission on the papers on this ground.

[65]Pill LJ has set out the relevant legal and factual background, which I need not repeat. It is to be noted in particular that the Council accepted that the development fell within Schedule 2 of the EIA Regulations, either under item 11(b) in the Table (“Installations for the disposal of waste”) or item 12(f) (“Golf courses and associated developments”). The issue therefore was whether it was “likely to have significant effects on the environment by virtue of factors such as its nature, size or location” (reg 2 “EIA development”).

[66]For the purpose of making this judgement, Mr Simpson properly had regard to the guidance in Circular 02/99, which contains what are described as “indicative criteria and thresholds”, set out in Annex A. They are introduced in the body of the circular (paras 43-4), in which it is emphasised that they are no more than indicative, and that:

“The fundamental test to be applied in each case is whether that particular type of development and its specific impacts are likely, in that particular location, to result in significant effects on the environment…”

The same warning is repeated in Annex A itself:

“The criteria and thresholds in this Annex (referred to in paragraphs 43-44) are only indicative. In determining whether significant effects are likely, the location of a development is of crucial importance….”

[67]Relevant to the present application were Golf courses “A34. New 18 hole golf courses are likely to require EIA. The main impacts are likely to be those on the surrounding hydrology, ecosystems and landscape, as well as those from traffic generation. Developments at existing golf courses are unlikely to require EIA.” Installations for the disposal of non-hazardous waste “A36. The likelihood of significant effects will generally depend on the scale of the development and the nature of the potential impact in terms of discharges, emissions or odour… sites seeking only to accept inert wastes (demolition rubble etc.) or Civic Amenity sites, are unlikely to require EIA.” Golf courses

Installations for the disposal of non-hazardous waste

[68]In the Screening Opinion, Mr Simpson commented very briefly on these two aspects Item 11(b) ”In this case the inert material is being brought to the site to create the landscaped mounds and not as a waste operation. The total amount of inert material to be brought to the site will be less than 50,000 tonnes per year for all phases of the development. It is therefore concluded that an EIA will not be required under section 11(b)” Item 12(f) “The proposal is not for a new golf course. It is for development at an existing golf course and is therefore unlikely to require an EIA” He went on to consider in a little more detail the “Selection Criteria” taken from Annex B of the Circular (reproducing Schedule 3 of the Regulations) under the headings: 1. Characteristics of development; 2. Location of development; 3. Characteristics of the potential impact.

Item 12(f)

(b) ” Item 12(f)

[69]I confess that, when considering the papers on the permission application, I had not appreciated the degree of uncertainty over what environmental material was available at the time of the Screening Opinion, or the extent to which it was taken into account in preparing it. It became apparent from Mr George’s exposition that, although there had been much work in identifying the environmental impacts of the whole proposal, there was recognition that more work needed to be done. Although the Opinion recognised the need to have regard to the impact of the whole proposal, including both phases, there is little indication in it either of the nature of the issues which were under examination, or of specific consideration being given to the environmental effects of anything beyond phase 1.

[70]However, I agree with Pill LJ that the serious error over the quantity of waste is enough in itself to undermine the validity of the Opinion. Like him, I am not persuaded that this is rectified by Mr Simpson’s subsequent evidence. In his third witness statement, he accepts that the reference to 50,000 tonnes per year was a misquotation, but says that the fact that there will be a greater tonnage of material brought on to the site than referred to in the Opinion is “not material” to whether an EIA would be required. The “key factor” supporting that view is the statement in the circular that “sites seeking to accept inert wastes” are unlikely to require an EIA. He comments:

“The reference to inert waste is not accompanied by a limitation on the amount of material brought to the site each year. I therefore concluded that as it was only inert waste and was being brought to the site to create the landscaped mounds, it clearly did not require EIA as a waste operation under sub-section 11(b). For this reason I was not especially concerned to check the volumes that I had misquoted…”

[71]I do not find that a convincing explanation. He seems to be doing precisely what the circular says should not be done, that it is to treat the “indicative criteria” as though they were something more than that, amounting to prescriptive and sufficient rules. It also reveals an inappropriately compartmentalised approach to the criteria. Although the circular suggests that importation of inert material to a waste disposal installation will not normally give rise to significant environmental effects, it is not saying that scale of importation of no relevance. In any event, here the importation is not to a conventional “installation”, but as part of development associated with a golf course within 12(d). In that context, it was wrong to dismiss the quantity of material as irrelevant simply because it was inert, or because it related to an existing rather than a new golf course. What mattered in that context, as the Circular recognises, were the specific effects of such a large quantity of waste deposited over such a wide area, on such things as hydrology, ecosystems and landscape.

[72]Finally, I would make one comment on ground 3. I agree with Pill LJ that it is unnecessary to go behind the findings made by the judge, on the basis of Mr Simpson’s evidence, that the operations were not thought to be “wholly or mainly” for the purpose of treating or depositing waste. However, I remain unclear as to what golfing purpose required the importation of such large quantities of material. Mr Simpson stated that the “proposed re-contouring” was to allow the provision of “a golf course that is easier to play as it serves to keep balls in play and less prone to being ‘lost’ in the rough”. It was not clear whether this statement was derived from Mr Simpson’s own golfing expertise, or if not from what other source. I confess that, even with the assistance of Miss Lieven QC, and of my own experiences as an inadequate golfer, I found it difficult to envisage the precise mechanics of what he was describing, or why it required imports of material on this scale.

[73]His evidence can be contrasted with a letter from the Council leader dated 2nd November 2009, in which he explained that under this “business model” the income necessary to support the development is provided by the fees generated by the deposit of inert modelling material. That is neither surprising nor a matter for criticism, since clearly the scheme requires to be commercially sustainable, and a home needs to be found for inert waste material. However, I find it hard to see how a proper appraisal of the true purpose of the waste deposit operations could be arrived without a much more thorough appraisal than is apparent from Mr Simpson’s evidence, or the reports to Committee, and without considering what was the true driving force from a commercial point of view.

Lord Justice Rimer :

[74]I agree with both judgments.