Gathercole v Suffolk County Council [2020] EWCA Civ 1179

"2. The development users and associate activities hereby approved shall only be carried out in accordance with … (xviii) Environmental Statement Appendix 7.1 Noise Technical Report That was the Adrian James report referred to at paragraph 11 above. … 21. Prior to their construction, details of the noise attenuation shelters shall be submitted to and approved in writing by the county planning authority. Such details shall include constructional details, facing materials, overall dimensions and orientation of openings. The shelters shall be provided in the approved form and, thereafter, be retained. 27. Following completion of construction and prior to occupation, a copy of the test report carried out in accordance with the recommendation of BB 93 Acoustic Design for Schools shall be submitted to and approved in writing by the county planning authority."

“65. In my judgment, the officer's report and, therefore, the planning authority's decision in reliance upon it, can be demonstrated evidentially to have satisfied this requirement, despite the absence of explicit reference to it in literal terms. All concerned identified and reflected upon the excessive levels of noise that would exist in the outdoor areas surrounding the new school. Steps were taken either to remove the disadvantages for those with protected characteristics, in the conditions attached to the planning permission, by the requirements that would achieve quieter indoor sound levels in the new school than would be provided to those groups in the existing school or to minimise them by the provision in the outdoor areas of noise attenuation shelters designed and constructed to achieve an approved standard. By providing that removal or minimisation of the disadvantages, while also providing new school places, shows that regard was had to meeting the needs of children with relevant protected characteristics to be placed in mainstream education who would live in the new housing. The effect would be to encourage their participation in the activity of education to which, therefore, due regard was had.”

“71. The question for the planning authority, therefore, was to decide whether the adverse environmental impact of excessive noise at the proposed site weighed in the scale of planning decision making so heavily as to require refusal of permission. That is to conduct an EIA, at least in substance, which is what the authorities require this court to evaluate. Moreover, it is material that at no stage has the claimant, or anyone else, identified yet further alternatives to be considered. The planning decision in this case proceeded upon the conclusion that even the adverse impact of excessive outdoor noise at the proposed site, balanced against the needs and benefits identified, justified the grant of planning permission, even though the environmental impact at alternatives sites considered was either no worse or in many, if not most cases, less severe or even absent. That is a matter for the planning judgement of the officers and the authority. I do not consider that the officer's report materially misled the planning authority in this respect. Accordingly, ground 3 of the challenge fails.”

“26.(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 (Admin), as follows: i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; iv) The duty is non-delegable; and v) Is a continuing one. vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.”

“47. We remind ourselves that our starting point here is not to consider the merit of Mr Streeten's argument on the scope of the duty in section 31(2A). We are not re-making the permission decision, or even at this stage considering whether there is a "powerful probability" that Rafferty L.J.'s decision to refuse permission was wrong. In our view, however, the proposition that the section 31(2A) duty applies only to "conduct" of a merely "procedural" or "technical" kind, and not also to "conduct" that goes to the substantive decision-making itself, is a surprising concept. The duty has regularly been applied to substantive decision-making across the whole spectrum of administrative action, including in the sphere of planning, both at first instance and in decisions of this court (see, for example, the judgment of Lindblom L.J. in R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427, at paragraphs 71 to 73). Although we did not hear full argument on the point, we would be prepared to say that the narrow construction of section 31(2A) contended for by the parish council is, on the face of it, mistaken. It does not seem to us to gain any real support in the first instance decisions on which Mr Streeten relied. The concept of "conduct" in section 31(2A) is a broad one, and apt to include both the making of substantive decisions and the procedural steps taken in the course of decisionmaking. It is not expressly limited to "procedural" conduct. Nor, in our view, is such a qualification implied. But this, we must stress, is not a necessary conclusion for the purposes of our decision on the application to re-open… 55. The mistake in Mr Streeten's submissions here is that, in the context of a challenge to a planning decision, they fail to recognize the nature of the court's duty under section 31(2A). It is axiomatic that, when performing that duty, or, equally, when exercising its discretion as to relief, the court must not cast itself in the role of the planning decision-maker (see the judgment of Lindblom L.J. in Williams, at paragraph 72). If, however, the court is to consider whether a particular outcome was "highly likely" not to have been substantially different if the conduct complained of had not occurred, it must necessarily undertake its own objective assessment of the decision-making process, and what its result would have been if the decision-maker had not erred in law. 56. It is, in our view, clear from Rafferty L.J.'s reasons that she was not persuaded there was a real prospect of establishing that, in performing the section 31(2A) duty, Cranston J. had trespassed into the forbidden territory of planning judgment. She did not need to say more than she did to make this clear. Mr Streeten highlighted Cranston J.'s use of the word "weighty" in paragraph 69 of his judgment to describe the factors seen by the district council's officer as going in favour of the grant of planning permission, and outweighing the harm to the conservation area. Rafferty L.J., however, was plainly unpersuaded that this was anything other than the judge's description of the officer's own planning assessment, supported, to the extent it was, by the conservation officer's response. She plainly also accepted that the officer's assessment had, quite legitimately, informed, but not dictated, the judge's own conclusion in performing the section 31(2A) duty. Otherwise, her conclusion would have had to be different.”

“’Environmental information’ means the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development; “‘Environmental statement’ means a statement - (a) that includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development... but (b) that includes at least the information referred to in Part 2 of Schedule 4”

“66. Further, since, according to Article 5(3)(d) of the EIA Directive, only an outline of those alternatives must be supplied, it must be held that that provision does not require the main alternatives studied to be subject to an impact assessment equivalent to that of the approved project. That said, that provision requires the developer to indicate the reasons for his choice, taking into account at least the environmental effects. One of the aims of imposing on the developer the obligation to outline the main alternatives is that reasons for his choice should be stated. 67. That obligation on the developer ensures that, thereafter, the competent authority is able to carry out a comprehensive environmental impact assessment that catalogues, describes and assesses, in an appropriate manner, the effects of the approved project on the environment, in accordance with Article 3 of the EIA Directive. 68. Last, it must be observed that the outline referred to in that provision must be supplied with respect to all the main alternatives that were studied by the developer, whether those were initially envisaged by him or by the competent authority or whether they were recommended by some stakeholders. 69. In the light of the foregoing, the answer to the fifth, sixth and seventh questions is that Article 5(3)(d) of the EIA Directive must be interpreted as meaning that the developer must supply information in relation to the environmental impact of both the chosen option and of all the main alternatives studied by the developer, together with the reasons for his choice, taking into account at least the environmental effects, even if such an alternative was rejected at an early stage.”

“Article 5(3)(d) requires a developer to provide in the ES sufficient information to enable a comparative assessment of the relative environmental effects of the proposed development and each of the main alternatives studied”

“41. Ground 1 in these proceedings is an example of the unduly legalistic approach to the requirements of Sch.4 to the Regulations that has been adopted on behalf of claimants in a number of applications for judicial review seeking to prevent the implementation of development proposals. The Regulations should be interpreted as a whole and in a common-sense way. The requirement that ‘‘an EIA application’’ (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R. v North Yorkshire CC Ex p. Brown [2000] 1 A.C. 397, at p.404, the purpose is ‘‘to ensure that planning decisions which may affect the environment are made on the basis of full information’’. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the ‘‘full information’’ about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘‘environmental information’’ provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between.”

“419. We turn to the EIA authorities. In Blewett, the complaint was that the environmental statement for a proposed extension to a landfill site contained no assessment of the effect of the scheme on groundwater protection. Instead, the minerals planning authority decided that that matter could be left to be assessed following the grant of planning permission, by assuming that complex mitigation measures would be successful. Sullivan J held that the starting point was that it was for the local planning authority to decide whether the information supplied by the applicant was sufficient to meet the definition of an environmental statement in the EIA Regulations, subject to review on normal Wednesbury principles (see [32]-[33]). Information capable of meeting the requirements in schedule 4 to the EIA Regulations should be provided (see [34]), but a failure to describe a likely significant effect on the environment does not result in the document submitted failing to qualify as an environmental statement or in the local planning authority lacking jurisdiction to determine the planning application. Instead, deficiencies in the environmental information provided may lead to the authority deciding to refuse permission, in the exercise of its judgment (see [40]). Thus, the statement in [41], that the deficiencies must be such that the document could not reasonably be described as an environmental statement in accordance with the EIA Regulations, was in line with the judge's earlier observations in [32][33]. It simply identified conventional Wednesbury grounds as the basis upon which the court may intervene. 420. In Shadwell Estates Ltd v Breckland District Council[2013] EWHC 12(Admin)at [73], Beatson J referred to a number of authorities which had taken the same approach in EIA cases to judicial review of the adequacy of environmental statements or the environmental information available: R vRochdale MBC ex parte Milne[2000] EWHC 650 (Admin);[2001] Env LR22at [106], R (Bedford and Clare) v Islington London Borough Council[2002] EWHC 2044 (Admin); [2003] Env LR 22 at [199] and [203], and Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321;[2012] Env LR 22at [39]. In Bedford and Clare, Ouseley J held that the environmental statement for the development of a new stadium for Arsenal was not legally inadequate because it had failed to assess transportation impacts using the local authority's preferred modal split, the loss of an existing waste handling capacity to make way for the development, noise effects at night and on bank holidays, contaminated land issues, and the effects of dust during construction. He considered that the significance or otherwise of those matters had been a matter for the local authority to determine. The claimant's criticisms did not show that topics such as modal split or noise effects had not been assessed at all. Instead, they related to the level of detail into which the assessment had gone and hence its quality. That was preeminently a matter of planning judgment for the decision-maker and not the court.”

“136. The answer, we think, must be apt to the provisions themselves. The court’s role in ensuring that an authority - here the Secretary of State - has complied with the requirements of article 5 and Annex I when preparing an environmental report, must reflect the breadth of the discretion given to it to decide what information “may reasonably be required” when taking into account the considerations referred to - first, “current knowledge and methods of assessment”; second, “the contents and level of detail in the plan or programme”; third, “its stage in the decision-making process”; and fourth “the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment”

“Here by contrast the potential prejudice to public and private interest from quashing the order is very great. It would be extraordinary if, in relation to a provision which is in terms discretionary, the court were precluded by principles of domestic or European law from weighing that prejudice in the balance.”

“54. Having found a legal defect in the procedure leading to the grant of permission, it is necessary to consider the consequences in terms of any remedy. Following the decision of this court in Walton v Scottish Ministers [2012] UKSC 44, [2013] PTSR 51, it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice (para 139 per Lord Carnwath, para 155 per Lord Hope). 55. Those statements need now to be read in the light of the subsequent judgment of the CJEU in Gemeinde Altrip v Land Rheinland-Pfalz (Case C72/12) [2014] PTSR 311. That concerned a challenge to proposals for a flood retention scheme, on the grounds of irregularities in the assessment under the EIA Directive. A question arose under article 10a of the Directive 85/337 (article 11 of the 2011 EIA Directive), which requires provision for those having a sufficient interest to have access to a court to challenge the “substantive or procedural” legality of decisions under the Directive. One question, as reformulated by the court (para 39), was whether article 10a was to be interpreted as precluding decisions of national courts that make the admissibility of actions subject to conditions requiring the person bringing the action – “… to prove that the procedural defect invoked is such that, in the light of the circumstances of the case, there is a possibility that the contested Page 26 decision would have been different were it not for the defect and that a substantive legal position is affected thereby… 58. Allowing for the differences in the issues raised by the national law in that case (including the issue of burden of proof), I find nothing in this passage inconsistent with the approach of this court in Walton. It leaves it open to the court to take the view, by relying “on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court” that the contested decision “would not have been different without the procedural defect invoked by that applicant”