Larkfleet Ltd, R (on the application of) v South Kesteven District Council & Anor [2015] EWCA Civ 887

Case No C1/2014/4043[2015] EWCA Civ 887
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 3760 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (PLANNING COURT)
MRS JUSTICE LANG
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 6 th August 2015
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE TOMLINSONLORD JUSTICE SALES
Between
THE QUEENClaimant/on the application ofAppellantLARKFLEET LIMITEDAppellantSOUTH KESTEVEN DISTRICT COUNCILDefendant/RespondentLINCOLNSHIRE COUNTY COUNCILInterested Party(Transcript of the Handed Down Judgment ofWordWave International LimitedTrading as DTI165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)Mr M Kingston QC & Mr C Banner (instructed by Shakespeare Martineau) for AppellantMr R Langham (instructed by South Kesteven District Council Legal Services) for RespondentMr J Hobson QC (instructed by Lincolnshire County Council Legal Services) for Interested PartyHearing Hearing dates : 22 and 23 July 2015
JudgmentLord Justice Sales :Introduction
[1]This is an appeal in relation to the judgment of Lang J – [2014] EWHC 3760 (Admin) – in which she dismissed a claim for judicial review of a grant of planning permission dated 27 November 2013 by the Defendant Council (“SKDC”), as the local planning authority, on an application by the Interested Party (“LCC”), as the relevant highways authority, for the construction of a major road (“the link road”) to link the B1174 and the A52 roads to the south of Grantham. The link road which is proposed to be built will extend another section of road from the A1 to the B1174 so as to create a single by-pass road (“the Grantham by-pass”). It is hoped that the Grantham by-pass will alleviate current heavy traffic congestion in Grantham itself, which arises in large part because traffic (including heavy goods vehicles) seeking to transfer between the major arterial roads of the A1 and A52 goes through the town centre.[2]The salient facts for present purposes are as follows.[3]There has been a long-standing planning policy objective to build a by-pass to the south of Grantham to alleviate this congestion. However, the funding for construction of a by-pass has not been available. The Grantham Transport Strategy, adopted in 2007, proposed that a by-pass be built as soon as possible, but also realistically noted that it was likely that the funding for it would have to come from private developers who proposed large new developments in the vicinity.[4]Subsequent to adoption of planning policy to build a by-pass, SKDC developed its local development plan. This had to address various planning needs in its area. The Core Strategy adopted as part of SKDC’s local plan in July 2010 identified sites for development to encourage economic regeneration in Grantham and to allow for residential development to extend the town. It also reiterated planning policy to develop a by-pass to the south of Grantham.[5]One site identified in the local plan for economic and residential development is an area to the south of Grantham known as the “Southern Quadrant.” The Southern Quadrant includes land between the A1 in the west and the A52 in the east. It is bisected by the River Witham and the East Coast Main Line close to the A1. To the west of the railway and river and to the south-west of Grantham and close to the A1 is a site known as “the Spittlegate site,” which has been identified as suitable for employment development. The land to the east of the railway and river comprises an area of arable farmland identified as suitable for residential and community development of up to 4000 new homes (“the residential site”).[6]The land at the residential site is owned by a developer, Buckminster Estates (“Buckminster”). The Appellant is a rival property developer which owns other land near Grantham in an area known as the North West Quadrant, which is also identified as suitable for development.[7]The relevant policy in the Core Strategy in relation to the Southern Quadrant states that access to the residential site will be dependent upon the provision of a new road from the A52 (i.e. the link road). This is because the highway system in Grantham would be overloaded if the development of the residential site proceeded with the only access to it being from Grantham itself.[8]The Core Strategy also includes policy SP3, dealing with sustainable integrated transport. This includes the following statement:
“In considering development proposals within the District, [SKDC] will ensure that the objectives of the most recent local transport plan for Lincolnshire are met. As part of the growth agenda for Grantham the delivery of traffic relief, including heavy goods vehicles, from the town centre will be a priority and any major development proposals within these areas will be expected to contribute towards delivering these schemes. The provision of an east-west relief road between the A1 and the A52 to the south of Grantham will be brought forward as part of the Southern Quadrant SUE [Sustainable Urban Extension] to the town …”
[9]The east-west relief road is what I have called the Grantham by-pass. In 2010 planning permission was granted for development of the Spittlegate site, including the western end of the Grantham by-pass between the A1 and the B1174. Construction for this development is underway.[10]The Core Strategy contemplated that a Masterplan should be drawn up to provide guidance in relation to the development of the residential site. In February 2013 SKDC adopted a Masterplan for the residential site (“the Masterplan”) as a supplementary planning document forming part of its local plan. The Masterplan includes a statement of the principles to govern development of the residential site and includes an illustrative plan of how such development might be laid out. The Masterplan shows the link road (i.e. the part of the Grantham by-pass between the B1174 and the A52) skirting the southern edge of the Southern Quadrant residential site, with a spine road for the residential site running between the link road and the A52 at a point to the east of Grantham. Roads are shown running from the spine road to different points within the residential site.[11]Before adoption, the Masterplan was subjected to strategic environmental assessment (“SEA”) under the SEA Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004 which implement that Directive.[12]The Masterplan was developed by SKDC in discussion with Buckminster. It was contemplated that if the residential site were to be developed, the developer would have to contribute to the funding of the Grantham by-pass under an agreement made pursuant to section 106 of the Town and Country Planning Act 1990 (“a section 106 agreement”), although that would probably be by way of repayment (or part repayment) of public funding for the by-pass which would be put in place to allow its construction in the first place.[13]On 25 March 2013 LCC submitted to SKDC an application for planning permission for the link road, a 3 km stretch of road between the B1174 and the A52 running along the southern edge of the residential site (“the link road application”). The link road would be married up to the Spittlegate end of the Grantham by-pass in the west. According to the planning application, the link road would also provide potential access to the residential site via a roundabout at the south of the site, with a stub of road which could later be extended into the spine road for the residential site (“the roundabout and stub”). Obviously, if there were to be development of the residential site later on with a spine road, it would be more economic and efficient to construct the link road with the roundabout and stub in the first place, rather than omit them and have to instal them separately later on.[14]Pursuant to the requirements of the Environmental Impact Assessment Directive 2011/92/EU (“the EIA Directive”) and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations”) which implement the EIA Directive in domestic law, the link road application was accompanied by an environmental statement (“the Environmental Statement”). The Environmental Statement treated the link road as the relevant “project” (using the language of the EIA Directive, as also transposed in Schedule 2 to the EIA Regulations) or “development” (using the language of the EIA Regulations), but recognised that the link road might have cumulative environmental effects in combination with the development of the residential site. The cumulative effects were addressed in chapter 14 of the Environmental Statement and also by way of assumptions made elsewhere in the Statement regarding the likely traffic flows, taking account of the substantial new housing which it was proposed would eventually be built on the residential site.[15]In May 2013, Buckminster applied to SKDC for a scoping opinion regarding the environmental statement which would be needed when it submitted an application for planning permission to develop the residential site. The plans submitted by Buckminster at this stage followed the guidance in the Masterplan closely.[16]On 19 June 2013 members of SKDC’s Development Control Committee attended a briefing which combined a presentation by LCC’s planning consultants in respect of the link road application and a presentation by Buckminster’s planning consultants on their progress in developing proposals for the residential site and to assist in answering queries as to how the link road proposals related to that site. Buckminster’s planning consultants’ presentation included plans setting out areas for proposed built development within the residential site and gave parameters for such development (“the parameter plans”), including parameters with wide variations of several metres for potential ground levels and proposed parameters for maximum heights for the buildings. The parameter plans did not provide precise information regarding what would be built where, nor what height any buildings might have in relation to the surrounding landscape.[17]On 27 November 2013, SKDC granted LCC planning permission in relation to the link road application. This is the planning permission which is under challenge in these proceedings.[18]In February 2014, LCC made an application for central government funding for the Grantham by-pass. It has secured agreement in principle for public funding for the by-pass for some £63 million, against an expectation of eventually recouping some £30 million under section 106 agreements in relation to development of the Spittlegate site and the residential site. At the hearing, by agreement between the parties, we granted permission for additional evidence to be adduced by the Appellant in relation to the grant application by LCC.[19]In September 2014 Buckminster applied to SKDC for outline planning permission to develop the residential site. The application was based on the Masterplan.[20]Meanwhile, the Appellant commenced these judicial review proceedings to challenge the grant of planning permission for the link road. It did so on two grounds: i) the Appellant says that the development of the link road and the development of the residential site are so inter-connected that in reality they constitute a single “project” or “development” for the purposes of the EIA Directive and the EIA Regulations and therefore, since the Environmental Statement did not provide the relevant environmental information which would have been required for such an integrated “project”/”development”, but only environmental information in relation to the link road project, planning permission for the link road could not properly be granted; alternatively, ii) even if it was appropriate to assess the link road as a separate “project”/“development” for EIA purposes, the Environmental Statement submitted by LCC failed adequately to address the cumulative effects of that project in combination with the proposed development of the residential site, as required by the EIA Directive and EIA Regulations.[21]The judge dismissed both grounds of challenge. In my judgment, she was right to do so.

The legal framework

[22]Article 1(1) of the EIA Directive provides that the Directive “shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.”[23]For major projects as listed in Annex I to the Directive, scrutiny under the EIA Directive is automatically required by virtue of Article 4(1). For other projects as listed in Annex II, a screening process is required to determine whether they should be subject to EIA scrutiny.[24]Annex I to the Directive sets out a long list of projects covered by Article 4(1), for which EIA scrutiny is automatically required, including for example “installations” of various kinds, “construction of lines for long-distance railway traffic” (para. 7(a)), “construction of motorways and express roads” (para. 7(b); and “construction of a new road of four or more lanes … where such new road … would be 10 km or more in a continuous length” (para. 7(c)).[25]Annex II to the Directive is entitled “Projects referred to in Article 4(2)” and sets out a yet more extensive list of projects grouped under various subject headings. The list again includes “installations” of various descriptions. Section 10 is headed “Infrastructure Projects” and includes “Urban development projects, including the construction of shopping centres and car parks” (para. (b)), “Construction of railways …” (para. (c)), “Construction of roads…” (para. (e)) and “Tramways, elevated and underground railways …” (para. (h)).[26]Article 4(2) and (3) of the Directive provides:
“(2) Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through: (a) a case-by-case examination; or (b) thresholds or criteria set by the Member State. Member States may decide to apply both the procedures referred to in points (a) and (b). (3) 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 in Annex III shall be taken into account. …”
[27]Annex III sets out selection criteria under the headings “1. Characteristics of Projects”, “2. Location of Projects” and “3. Characteristics of the Potential Impact”. Under the first of these headings, Annex III provides “The characteristics of projects must be considered having regard, in particular, to: … (b) the cumulation with other projects.”[28]Article 5 requires Member States to impose obligations regarding the information to be provided for EIA scrutiny of projects identified pursuant to Article 4 as requiring such scrutiny. Article 5(3) requires provision of a minimum level of information, as follows:
“The information to be provided by the developer in accordance with paragraph 1 shall include at least: (a) a description of the project comprising information on the site, design and size of the project; (b) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects; (c) the data required to identify and assess the main effects which the project is likely to have on the environment; (d) an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects; (e) a non-technical summary of the points referred to in points (a) to (d).”
[29]Regulation 2(1) of the EIA Regulations includes the following definitions: “‘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 … ‘environmental statement’ means a statement – (a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but (b) that includes at least the information referred to in Part 2 of Schedule 4. … ‘Schedule 2 development’ means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where – … (b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development”.[30]Regulation 3 prohibits the grant of planning permission without consideration of the requisite environmental information.[31]Regulation 4(6) provides that where a relevant planning authority has to decide whether Schedule 2 development is EIA development it shall take into account “such of the selection criteria in Schedule 3 as are relevant to the development.”[32]Schedule 1 to the EIA Regulations sets out descriptions of development to be regarded as Schedule 1 development for which EIA scrutiny is automatically required. The list of types of development in Schedule 1 corresponds to the list of projects in Annex I to the Directive.[33]Schedule 2 to the EIA Regulations sets out descriptions of development and applicable thresholds and criteria to define Schedule 2 development for which EIA scrutiny will be required if such development is “likely to have significant effects on the environment” (see the definition of “EIA development” set out above and Article 1(1) of the EIA Directive, where this phrase is used). Paragraph 2 of Schedule 2 sets out a table listing, in column 1, the descriptions of relevant development and, in column 2, the applicable thresholds and criteria. The list of developments in Schedule 2 corresponds with the list of projects in Annex II to the Directive. As in Annex II, section 10 in the table includes, at para. (b) in column 1, “Urban development projects” (and column 2 sets out the relevant thresholds by reference to the area of the development or whether it includes more than 150 dwellings); and at para. (f) in column 1, “Construction of roads (unless included in Schedule 1)” (and column 2 sets out the threshold: “The area of the works exceeds 1 hectare”).[34]Schedule 4 to the EIA Regulations sets out the information required to be included in environmental statements, reflecting the obligations in Article 5 of the EIA Directive. This includes (see para. 4 in Part 1 of Schedule 4) “A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from [various matters]”. Part 2 of Schedule 4 corresponds to Article 5(3) of the EIA Directive and sets out the minimum level of information which is required to be provided in relation to EIA development. This includes “A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects” (para. 2) and “The data required to identify and assess the main effects which the development is likely to have on the environment.” Discussion Ground 1: is the link road a “project” or “development” taken by itself?

Discussion

[35]The interpretation of the EIA Directive and, in conformity with it, the EIA Regulations has to have regard to the Directive’s objective of protection of the environment. What is in substance and reality a single project cannot be “salami-sliced” into a series of smaller projects, each of which falls below the relevant threshold criteria according to which EIA scrutiny is required: Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid [2009] ECR I-6097 at para. 51 of the Opinion of Advocate General Kokott and para. 44 of the judgment, where the ECJ said this:
“… the purpose of the amended [EIA] directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the amended directive …”
[36]Mr Kingston QC, for the Appellant, sought to rely on these passages in support of his submission that SKDC was obliged to assess the proposal for the link road and the proposal for the residential site as a single project. However, in my view the argument is unsustainable. It is clear from the terms of the EIA Directive that just because two sets of proposed works may have a cumulative effect on the environment, this does not make them a single “project” for the purposes of the Directive: the Directive contemplates that they might constitute two potential “projects” but with cumulative effects which need to be assessed. The passages from Ecologistas to which I have referred also contemplate that two sets of proposed works may constitute different projects for the purposes of the Directive. What these passages are directed towards is avoiding a situation in which no EIA scrutiny is undertaken at all. However, if the two proposed sets of words are properly to be assessed as two distinct “projects” which meet the threshold criteria in the Directive, there will be EIA scrutiny of the cumulative effects of the two projects.[37]It is true that the scrutiny of cumulative effects between two projects may involve less information than if the two sets of works are treated together as one project, and a planning authority should be astute to ensure that a developer has not sliced up what is in reality one project in order to try to make it easier to obtain planning permission for the first part of the project and thereby gain a foot in the door in relation to the remainder. But the EIA Directive and the jurisprudence of the Court of Justice recognise that it is legitimate for different development proposals to be brought forward at different times, even though they may have a degree of interaction, if they are different “projects”, and in my view that is what has happened here as regards the application for permission to build the link road and the later application to develop the residential site.[38]The EIA Directive is intended to operate in a way which ensures that there is appropriate EIA scrutiny to protect the environment whilst avoiding undue delay in the operation of the planning control system which would be likely to follow if one were to say that all the environmental effects of every related set of works should be definitively examined before any of those sets of works could be allowed to proceed (and the disproportionate interference with the rights of landowners and developers and the public interest in allowing development to take place in appropriate cases which that would involve). Where two or more proposed linked sets of works are in contemplation, which are properly to be regarded as distinct “projects”, the objective of environmental protection is sufficiently secured under the scheme of the Directive by consideration of their cumulative effects, so far as that is reasonably possible, in the EIA scrutiny applicable when permission for the first project (here, the link road) is sought, combined with the requirement for subsequent EIA scrutiny under the Directive for the second and each subsequent project. The adequacy and appropriateness of environmental protection by these means under the EIA Directive are further underwritten by the fact that alternatives will have been assessed at the strategic level through scrutiny of relevant development plans (here, the Core Strategy and Masterplan) from an environmental perspective under the SEA Directive.[39]Mr Kingston pointed out that an “urban development project” (paragraph (b) of section 10 of Annex II to the EIA Directive; paragraph (b) of section 10 in paragraph 2 of Schedule 2 to the EIA Regulations) may very often include the construction of roads, so the reference to “construction of roads” in paragraph (e) of section 10 of Annex II to the EIA Directive and the corresponding paragraph (f) of section 10 in paragraph 2 of Schedule 2 to the EIA Regulations did not demonstrate that the proposal for construction of the link road should be regarded as a “project” in itself, distinct from the urban development project which was to be carried out on the residential site. This is true, but simply means that in the present context an evaluative assessment is required as to whether the construction of the link road is properly to be regarded as a distinct “project” of the description in paragraph (e) of section 10 of Annex II or as an inherent part of the “urban development project” contemplated for the residential site. As a matter of language, it is capable of being either.[40]Since an evaluative judgment is required on that issue, the question arises whether the proper legal approach is to say that the primary decision-maker to make that judgment is the relevant planning authority (which may, depending on the context, be a local planning authority, an inspector or the Secretary of State), subject to rationality review by the court on Wednesbury principles, or to say that the court is itself the primary decision-maker on any appeal or judicial review application before it and should form its own judgment on that question. In relation to the closely related question, whether a project is “likely to have significant effects on the environment” (see the definition of “EIA development” in regulation 2(1) of the EIA Regulations and Article 1(1) of the EIA Directive) there is authority that the former approach is correct: see Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321, [39]-[41]; R (Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114, [30]-[43]. As regards the evaluative judgment whether a particular set of works constitutes one distinct “project” or part of another, wider “project” containing another set of works, I think there is a strong argument that, likewise, the former approach is correct. As Simon Brown J (as he then was) said in R v Swale Borough Council, ex p. Royal Society for the Protection of Birds [1991] 1 PLR 6, at 16B-C, in relation to the predecessor of the current EIA Directive, “The decision is whether any particular development is or is not within the scheduled descriptions is exclusively for the planning authority in question, subject only to Wednesbury challenge. Questions of classification are essentially questions of fact and degree.”[41]Sullivan J (as he then was) followed the same approach on the question of identification of the relevant project for the purposes of EIA scrutiny in R (Linda Davies) v Secretary of State for Communities and Local Government [2008] EWHC 2223 (Admin), at [48]. In my view, there is a great deal to be said for this, since the EIA Directive and EIA Regulations impose obligations on the relevant national planning authorities and it is they who have to apply the law in the first instance and bring their detailed knowledge and experience to bear to do so.[42]Against this, Mr Kingston said that the courts in R (Candlish) v Hastings Borough Council [2005] EWHC 1539 (Admin) and Burridge v Breckland District Council [2013] EWCA Civ 228 had made their own judgment regarding the identity of the relevant project for EIA purposes. However, it is not clear that the issue of approach was raised in Candlish and it did not matter, because the judge came to the same conclusion as the planning authority. In Burridge there was no debate regarding the choice of approach (as Mr Hobson, who was counsel in the case, informed us, and as the absence of reference to the relevant passage from the judgment of Simon Brown J in Swale quoted above bears out); and again it made no difference, because although the Court of Appeal reached a different conclusion from the planning authority and the judge below regarding the identity of the project, it was common ground in the argument before us that on the facts in Burridge there was only one possible conclusion which could rationally be arrived at regarding the identity of the project, which was that set out by the Court of Appeal.[43]Mr Kingston also submitted that the ECJ in Case C-227/01 Commission v Spain [2004] ECR I-8253 determined for itself what was the identity of the relevant project, and that this indicated that in the present context it is for the national court to do the same. But Laws LJ gave the answer to this argument in Bowen-West at [40]: Commission v Spain is an infringement case in which the Court of Justice must inevitably make all judgments of fact and law. Accordingly, it does not provide appropriate guidance for the approach which a national court should adopt when reviewing the lawfulness of a decision regarding EIA scrutiny taken by a planning authority within the national planning system.[44]Interesting though this debate has been, at the end of the day it is unnecessary to decide finally which approach is correct in law, since both lead to the conclusion that the appeal on this ground should be dismissed. I am of the view that the link road proposal is a “project” for EIA purposes which is distinct from the proposed development of the residential site. That view accords with the assessment made by SKDC. In this case, therefore, the position is the same in this court as it was in Bowen-West, in which Laws LJ decided with the agreement of the other members of the court that the relevant works in question constituted a self-contained “project” distinct from other proposed works, and said:
“And I would so conclude whether the issue is one of law or one of judgment for the Secretary of State [i.e. the relevant planning authority] and in the latter case whatever the appropriate standard of review.”
[45]Mr Kingston submitted that there are a number of features of this case which should lead us to the contrary conclusion, namely that the link road is really part and parcel of one urban development project comprising the development of the residential site plus the link road. In particular, he said that there were functional connections between the two (the link road would provide access to the residential site, and was critical for that purpose if planning permission was ever to be granted for development of the residential site as proposed); design connections (the construction of the roundabout and stub, which was intended to provide for a junction with the spine road to be constructed as part of development of the residential site; also the particular course chosen for the link road, skirting the residential site rather than going through it); and financial connections (the construction of the link road depends upon funding contributions from the developer of the residential site pursuant to a section 106 agreement which it was hoped would be put in place when planning permission was granted for development of the residential site). Mr Kingston also pointed to the degree of co-operation and co-ordination between those working up proposals for the link road and the residential site developments, including the joint presentation on 19 June 2013. He also took us to a number of passages in SKDC’s local plan, the planning application documents submitted by LCC and other materials (in particular, the documents in support of LCC’s application for central government funding) where the linkage between the developments was emphasised.[46]In my judgment, however, none of the points made by Mr Kingston, whether taken individually or cumulatively, supports the conclusion that for the purposes of EIA scrutiny the link road is properly to be regarded as part of one combined “project” involving also the development of the residential site. The most important feature of this case is that there is a strong planning imperative for the construction of the link road as part of the Grantham by-pass which has nothing to do with the development of the residential site. It is clear from the evidence that the residential site could not be granted planning permission unless the link road is constructed, but the converse is not true: there is a strong independent planning need for the construction of the link road (to complete the Grantham by-pass) whether or not the residential site is developed. In the context of this planning rationale, it makes obvious sense to regard the main function of the link road as being to form part of the Grantham by-pass and hence to regard the relevant project as the “construction of a road” (in the terminology in section 10 of Annex II to the EIA Directive). Since the main functional purpose of the link road, as part of the Grantham by-pass, is to provide a new passage for traffic to avoid Grantham this approach to identification of the project is supported by the references to roads and other transportation projects such as railways, tramways and so on in Annex I and Annex II to the EIA Directive as set out above.[47]The functional, design and funding connections relied on by Mr Kingston do not detract from this evaluation. The functional connection is attenuated in the way I have described. The grant of planning permission for development of the residential site will be dependent on construction of the link road, but there are good grounds for granting planning permission for the link road which in no way depend upon the development of the residential site.[48]As to the design connections, given that it is part of SKDC’s local plan that the residential site should be developed for housing (with some community and employment uses as well), it is simple planning good sense that an application should have been made for the link road (as part of the Grantham by-pass) to skirt the site, to avoid jeopardising those discrete planning objectives, and for the link road to include the roundabout and the stub, to avoid extra costs which are foreseeable if the residential site is developed in accordance with the local plan documents. These adjustments to allow for accommodation of other distinct planning possibilities in the vicinity while fulfilling the main planning objective of building the Grantham by-pass do not demonstrate such inter-connectedness between the link road and the development of the residential site that they should be regarded as all part of one combined “project”. For the same reasons, it was an ordinary matter of planning common sense, in the interests of arriving at a sensible co-ordination of different projects and proposals, to hold the joint presentation for SKDC members in June 2013 at which both the link road proposals and the residential site proposals and any bearing they had on each other could be discussed.[49]The fact that funding for the construction of the link road will depend to a significant degree on contributions in due course from the developer of the residential site does not lead to the conclusion that they must be regarded as part of a single “project”. The funding arrangements are contingent matters which do not bear on the planning merits of the proposal to construct the link road to complete the Grantham by-pass. It is desirable in planning terms that the Grantham by-pass should be completed, however it may be funded. It is legitimate for a planning authority to grant planning permission for a development where there remains doubt whether the development will be funded, which is often a contingent and uncertain matter, precisely because the planning authority is concerned with the planning merits of an application rather than whether it can be funded or not. In fact, in the present case it is proposed that there should be a strong element of public funding for the Grantham by-pass, both by making public money available “up front” to be recouped later on out of contributions from private developers which it is hoped will eventually be forthcoming and also (according to the grant application which post-dates the grant of planning permission) because only about half the considerable public expenditure to build the by-pass is expected to be recovered in this way (£30 million out of £63 million cost). The public funding which is expected to be made available to construct the road reflects the strong public need which is believed to exist for it, which cannot all be attributed to the private developments linked to it. If anything, this pattern of funding again reinforces the appropriateness of treating the link road as a “project” distinct from the development of the residential site.[50]As regards the references in the local plan documents and other documentation to the connections between the link road and the residential site proposals, in my view they are just reflections of the points of linkage between the link road and the residential site referred to above. For example, it is unsurprising that in seeking planning permission for the link road LCC should have emphasised not just the desirability of constructing the Grantham by-pass but also how well that project fitted with other aspects of SKDC’s local plan and the other benefits for SKDC’s area which it would bring; and it is unsurprising that in seeking central government funding for the Grantham by-pass LCC should have emphasised both the need for the by-pass to ease traffic congestion in Grantham and also the other wider benefits which would be likely to be associated with its construction. These documents provided “jury points” for Mr Kingston in his submissions, and he made good use of them, but none of them affects the appropriate underlying assessment that the link road is a “project” distinct from the development of the residential site.[51]As further support for the identification of the link road as a distinct “project”, I think it is relevant that the applicant for planning permission is LCC, which is the highway authority with responsibility to promote the public interest in relation to the road network. LCC is not a private developer and has no commercial interest in the residential site. This tends to indicate that the two projects are distinct. I also think it is relevant that at the time of the link road application the detail of the proposals for the development of the residential site had not been worked up to the point at which an application for planning permission could be made by Buckminster, and it cannot be said that this was any part of some deliberate plan to “salami-slice” the applications so as to subvert the proper operation of planning controls.[52]I can detect no error of law in the judge’s ruling on this ground of challenge, at paras. [59]-[70] of her judgment.

Ground 2: The assessment of cumulative effects

[53]In my judgment, this ground of appeal also falls to be dismissed. Again, I can detect no error on the part of the judge: see paras. [71]-[94] of her judgment. I accept the submissions made by Mr Langham for SKDC in relation to this ground of appeal.[54]The Environmental Statement submitted by LCC in respect of its application for permission to construct the link road dealt with cumulative effects in relation to the proposed development of the residential site in two ways, by including increased figures for traffic movements etc to reflect the numbers of people who would live there and by assessing cumulative effects in relation to a range of subject matters in chapter 14. EIA scrutiny is in relation to impacts which are “likely”, and the Environmental Statement addressed those impacts, including cumulative impacts, in an appropriate and adequate way.[55]In the Environmental Statement LCC supplied as much information as it reasonably could about the cumulative effects, taking account of the degree of uncertainty which existed about the precise details of development of the residential site in accordance with the Masterplan. Uncertainty in relation to a later proposed project affects what cumulative effects can be said to be likely at the time when the application for the earlier development (here, the link road) is being considered. The greater the uncertainty, the less precise the details which can be given about the likely cumulative impacts. In our case, the Masterplan did not specify exactly where particular buildings would go and left a large margin of uncertainty regarding their roof heights and so forth. On the other hand, it did give a reasonably good idea of where green areas would be left to minimise the environmental impacts from the residential development and LCC’s Environmental Statement reflected this information.[56]The Environmental Statement gave the appropriate data to the level which LCC as applicant for permission could reasonably be required to compile, having regard to current knowledge (see the definition of “environmental statement” in regulation 2(1) of the EIA Regulations, set out above). It explained that an urban extension with identified main components (reflecting the Masterplan) was likely to be constructed on open land to the north of the link road (i.e. on the residential site); the size of the development meant that a large proportion of that open land would be covered with built development and roads; but it could not be said where exactly buildings would be located or what their size would be. The parameter plans submitted by Buckminster in June 2013 did not materially alter this picture.[57]Having read and re-read chapter 14 of the Environmental Statement, I find it very difficult to see what more it could usefully have said in terms of identifying likely cumulative impacts. In my view, it gives a fair and more than adequate account of what the cumulative impacts are likely to be.

Conclusion

[58]For the reasons given above, I would dismiss this appeal.

Lord Justice Tomlinson:

[59]I agree

Lord Justice Moore-Bick:

[60]I also agree.

Cited in 5 later judgments