Younger Homes (Northern) Ltd v First Secretary of State & Anor [2003] EWHC 3058 (Admin)

Case No CO/5928/02

[2003] EWHC 3058 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday 26 November 2003

Strand

London WC2

B E F O R E:

MR JUSTICE OUSELEY

Between

YOUNGER HOMES (northern) LTDClaimant

-v-

Between

FIRST SECRETARY OF STATEDefendant

CALDERDALE METROPOLITAN DISTRICT COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR RICHARD HARWOOD (MR J BURTON 26/11/03 only) instructed by EATON SMITH SOLICITORS) appeared for CLAIMANT

MR TIMOTHY MOULD (instructed by THE TREASURY SOLICITORS) appeared for 1ST DEFENDANT

MR VINCENT FRASER QC (MR CJ HUNTER 26/11/03 only) (instructed by LEGAL DEPARTMENT TO CALDERDALE MDC) appeared for 2ND DEFENDANT

JUDGMENT

[1]MR JUSTICE OUSELEY: On 23rd July 1999 a group of developers sought planning permission for a predominantly retail development with a swimming pool and car parking on a 3.777 hectare site in Brighouse, Calderdale, upon which stood substantial redundant agricultural foodstuff mills and silos. In May 2000, the application was called in and, following an Inquiry in January 2001, the First Secretary of State wrote to the parties in August 2001 saying that he was minded to grant planning permission subject to an agreement under section 106 of the Town and Country Planning Act 1990, which tied the development to certain infrastructure improvements. In March 2002, one of the landowning developers sold its landholding, which was a substantial part of the site, to the present Claimants. They are housebuilders who wished to develop the site or their part of it for a residential scheme. The First Secretary of State refused their request that he reopen the inquiry. The section 106 agreement was eventually signed by the other developers and, on 14th November 2002, the First Secretary of State finally issued the planning permission.

[2]The Claimant challenges that decision under section 288 of the Town and Country Planning Act 1990 on the grounds that the First Secretary of State failed to make or to consider making a screening direction pursuant to regulations 6 and 8 of the Town and Country Planning (Environmental Impact Assessment) England and Wales Regulations 1999, SI 293. These give effect to the Environmental Assessment Directive 1985 as amended in 1997. The Claimant contends that reliance by the First Secretary of State for these purposes on any apparent screening opinion of the Calderdale Metropolitan Borough Council, the Local Planning Authority, given in early August 1999 was ineffective because, for a variety of reasons, that screening opinion was unlawful. Hence the planning permission was not within the powers of the 1990 Act and fell to be quashed. In the absence of a valid screening opinion, the obligation to subject development likely to have a significant effect on the environment to an environmental impact assessment could not be fulfilled. The Claimant expects that, if not quashed, the planning permission will become the basis for compulsory purchase of its interests.

The legislation

[3]Article 2(1) of the Environmental Assessment Directive, as amended, provides as follows in Article 4(2) to (4):

"1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10. 2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through: (a) a case-by-case examination, or (b) thresholds or criteria set by the Member State whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States may decide to apply both procedures referred to in (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 set out in Annex III shall be taken into account. 4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public."

There is no dispute but that the development was within Annex 2 to the Directive, as an urban development project within paragraph 10(b). Annex 3 contains the selection criteria referred to in Article 4 paragraph 3.

[4]The 1999 Regulations transpose these obligations into domestic law. By regulation 3(2) the First Secretary of State is prohibited from granting planning permission for an "environmental impact assessment application" unless there has been an environmental statement with its associated procedures.

(b) :

"'EIA application' means an application for planning permission for EIA development: '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 agreed that this was Schedule 2 development because it fell within the scope of an urban development project in the Schedule to the Regulations, which parallels Annex 2 to the Directive, and the size threshold of 0.5 hectare was exceeded. It was not a sensitive area. It was not accepted, however, that it was likely to have any significant environmental effect, and that is where the debate centres.

[5]In order for the obligation in regulation 3(2) to work, it is necessary that there be a system in place for considering whether any application which falls within Schedule 2 is also EIA development because it is likely to have significant environmental effects. For these purposes this is dealt with in regulation 7. The application was submitted without an environmental statement and was for a Schedule 2 development. When submitted to the Local Planning Authority, it had not been the subject of either a screening opinion or a screening direction. Accordingly, regulation 7 required that the application be treated as if a request for a screening opinion had been made under regulation 5(1). Regulations 5(2) to (4) are as follows:

"(2) A request for screening opinion shall be accompanied by--- (a) a plan sufficient to identify the land; (b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and (c) such other information or representations as the person making the request may wish to provide or make. (3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information. (4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request."

Regulation 5(5) is also relevant to an argument raised by the Claimant:

"(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request."

[6]In this case, the First Secretary of State called the application in for his own determination. Regulation 8 applies first. It is similar to regulation 7, but its precise text became the subject of some debate. Regulation 8(1) provides:

"(1) Where it appears to the Secretary of State that an application for planning permission which has been referred to him for determination--- (a) is a Schedule 1 application or Schedule 2 application; and (b) the development in question has not been the subject of a screening opinion or screening direction; and (c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, paragraphs (3) and (4) of regulation 6 shall apply as if the referral of the application were a request made by the applicant pursuant to regulation 5(6)."

Regulations 6(3) and (4) provide:

"(3) The Secretary of State shall, if he considers that he has not been provided with sufficient information to make a screening direction, notify in writing the person making the request pursuant to regulation 5(6) of the points on which he requires additional information and may request the relevant planning authority to provide such information as they can on any of those points. (4) The Secretary of State shall make a screening direction within three weeks beginning with the date of receipt of a request pursuant to regulation 5(6) or such longer period as he may reasonably require."

[7]Regulation 4 contains general provisions.

(b) and regulation 4(3):

"(2) The events referred to in paragraph (1) are--- ... (b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development. (3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development."

The distinction in wording reflects the Secretary of State's power to overrule the Local Planning Authority's opinion, whether on a request to overrule a positive decision or, of his own motion, to overrule a negative one.

[8]Regulation 4(6) provides that where the screening opinion is to the effect that the development is EIA development clear, precise and full reasons have to be given for that decision. There is no equivalent provision for the contrary screening opinion. This may reflect the power of the First Secretary of State to reach a different decision anyway. A screening opinion is defined, however, in regulation 2 as follows:

"'screening opinion' means a written statement of the opinion of the relevant planning authority as to whether development is EIA development."

[9]By regulation 20, where a screening opinion has been adopted a copy of it has to be placed on the planning register with the planning application to which it relates. In view of an argument raised by Calderdale MBC, I should point out that that obligation does not end after two years. That only applies to a screening opinion which has been adopted before any planning application was ever made.

[10]Regulation 30 deals with the legal implications of non-compliance with the Regulations in certain respects. It provides:

"30. For the purposes of Part XII of the Act (validity of certain decisions), the reference in section 288 to action of the Secretary of State which is not within the powers of the Act shall be taken to extend to a grant of planning permission by the Secretary of State in contravention of regulations 3 or 25(1)."

[11]In addition to the thresholds and criteria relevant for the decision as to whether any development would be likely to have significant environmental effects, there is policy guidance which discusses the selection criteria which appear in Schedule 3 to the Regulations, as they do in Annex 3 to the Directive. Circular 2/99, Environmental Impact Assessment, provides in paragraph 33. Three broad criteria should be considered. These are: the characteristics of the development; the environmental sensitivity of the location and the characteristics of the potential impact. In the light of these, the First Secretary of State advises that an EIA will be needed for Schedule 2 developments in three main types of case. These are:

"(a)for major developments which are of more than local importance (paragraph 35); (b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and (c) for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42)."

[12]Indicative criteria, for consideration on a case-by-case basis, are set out in Annex A; they are broad indications and no more. Paragraphs A18 and 19 are relevant here:

"Urban development projects (including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiple cinemas) A18. In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination (paragraph 41). A19. Development proposed for sites which have not previously been intensively developed are more likely to require EIA if: the site area for the scheme is more than 5 or hectares; or it would provide a total of more than 10,000 m 2 of new commercial floor-space; or the development would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings)."

The facts

[13]Although there was a certain amount of confusion over the facts - allegations of missing documents and newly created ones, with some yet graver undertones which were stilled during the hearing, and an application to cross-examination two Calderdale MBC witnesses, which was rejected as unnecessary in the light of what Mr Fraser QC for Calderdale MBC had to say - the position seemed to me tolerably clear.

[14]There was a factual issue as to whether Calderdale MBC had ever in fact provided a screening opinion. When in December 2002 Mr Ibberson, a director of the Claimant, inspected the planning register and the planning files at the offices of Calderdale MBC to see what references to an EIA he could find, he said in his first witness statement that he found no reference at all in either to a screening opinion. His architect, Mr Pickles, went in January 2003 to repeat the exercise, and found on the planning files a letter dated 4th July 2000 to the Government Office for Yorkshire and Humberside ("GOYH"). This is an important letter because it refers to and reproduces, according to the evidence of Calderdale MBC, the terms of the screening opinion which Mr Raper, a principal planning officer, reached in August 1999. Mr Pickles said that it appeared newer than the correspondence on either side. Mr Ibberson then revisited the offices, and, agreeing to the different condition, said that it confirmed his view that it had not been on the files in December 2002.

[15]Mr Raper, who in 1999, was dealing with development control as a principal planning officer, said in his first witness statement that he had had to provide the screening opinion because the planning officer, whose case it was, had gone on leave during the three week period which the local authority had for dealing with the screening opinion, following the validation of the application on 30th July 1999. The application had been submitted on 23rd July. Mr Raper confirmed that his screening opinion had been in the form of a handwritten note, which was not now on the files and no one knew what had happened to it. It was not on the planning register either, nor, according to Mr Melhuish, a senior planning officer, did the register contain any screening opinions for the period from 14th March 1999, when the requirement was introduced, until (I infer) the start of 2000.

[16]Mr Melhuish said in his witness statement that the handwritten A4 note was on the file in July 2000 because he used it to copy the contents of it on to the letter of 4th July 2000. This letter responded to the telephone request from the GOYH to Calderdale MBC for information as to whether there had been a screening opinion by Calderdale MBC, as the opening sentence of the letter makes clear. In their anxiety at the veiled suggestion that the 4th July 2000 letter was a newer document because of its allegedly pristine state, the original was obtained from the GOYH files, with the date of receipt stamped on it of 6th July 2000. It was produced by Mr Crawshaw, a senior planning officer with the Government Office, who also remembered telephoning Mr Melhuish to inquire whether there had been a screening opinion. Mr Melhuish said that the 4th July 2000 letter had always been, to his knowledge, on the planning files, followed by two letters of 12th July 2000, the second of which was the GOYH acknowledgment. The files are not in loose-leaf form. He contested whether it or other documents were in a pristine condition.

[17]I infer from all this that the screening opinion was never put on the planning register as required because there appears to have been no practice for putting screening opinions there, for whatever reason, and Mr Melhuish says that he got it from the planning file, not the register, when he copied it out. I have no doubt but that the letter of 4th July 2000 was sent and that in order to send it, Mr Melhuish would have had to, and did, find the handwritten note and that it was at that time on the planning file. No one knows what has become of it. He would have needed the letter to recreate the screening opinion and the most obvious place to look would be on the file as it was not on the register. I also accept the evidence of Mr Raper that he did in fact prepare a note in the precise terms set out in the 4th July letter.

[18]It does not matter very much whether the letter of 4th July was on the files at all times before Mr Pickles found it there in January 2003. It cannot be said, however, that there were no changes to the file between the claimant's December and January visits. Mr Melhuish said that, when it came to his notice that the original handwritten note was missing from the file, he recreated it so that the file would be complete, as it should be. He said that this was standard practice. The new note refers to itself as being a copy of the screening opinion. I accept that what Mr Melhuish says is true. I find it odd to suppose that he would explain his dealings with the screening opinion and its replacement in the way that he did, without also saying that he had added the letter of 4th January 2000 to the files in December 2000 if he in fact had. Mr Raper had retired in 2001 and so would not have been in a position to add anything. It is possible that others had access to the file so as to add the letter, but I think it more probable that it was overlooked by Mr Ibberson on his visit in December 2002.

[19]The other document about which there has been debate is less important. There was a validation sheet which would have been used to validate the application on 30th July 1999; at the bottom of the sheet of checklisted items are the scribbled words "EIA not required", Mr Raper's initials and the date "3/8". That is obviously a reference in context to 3rd August 1999. There was a debate about when that had been put on the files or when those words had been put on in a different coloured ink. Neither Mr Ibberson nor Mr Pickles saw this document or at any rate the reference in it to "EIA" on their visits at the turn of the year. Mr Melhuish says that it was always on the file. Mr Raper says that it is his signature and writing, but he does not specifically say when they were put on the sheet nor what happened to it.

[20]This ties in with Mr Raper's temporary dealings with this application at the end of July 1999. I see no reason to infer from the different inks that the words were added later than 3rd August 1999, though they may have been added after other parts had been filled in, because the application had been validated earlier on 30th July. I am unable to resolve the dispute as to the whereabouts of the sheet, and it is unnecessary to do so.

[21]It might have been argued that this sheet was itself a screening opinion and it might or might not have passed muster in that respect, but as Mr Raper's evidence is quite clear that the screening opinion was his handwritten note, reproduced in the letter of 4th July 2000, it has no further significance.

[22]Accordingly, I proceed on the basis that a document which Mr Raper intended to be a screening opinion was produced at some time in the first three weeks of August, a time which fits both with the statutory timetable and with the absence on leave of Mr Melhuish, who would otherwise have had to deal with the application. The screening opinion reads as follows:

"A site of 3.77 ha, again for retail (and leisure) purposes, which therefore falls into the same category as the above ie s10(b) of Schedule 2. This time the site is already built up with massive silos occupying the centre of the site. Para A18 of the advice is therefore relevant - 'EIA ... unless scale of development is significantly greater'. In volume, that is unlikely to be the case although the main retail block would cover a larger ground area. (However, most of the site is already tarmac covered/occupied by buildings.) Overall, the scale of redevelopment is considered similar; the traffic impact will be greater in attracting numbers of cars, but the closure of Mill Royd Street will reduce the cross-site movements, so in traffic terms it is a case of swings and roundabouts. There is unlikely to be a high level of contamination. Site not considered to fall into para 33/a/b/c therefore EIA not required."

The claimant's contentions

[23]Mr Harwood for the Claimant challenges the lawfulness of this screening opinion on a variety of grounds. If it is unlawful, he submits, there was in effect no screening opinion at the time when the obligations on the Secretary of State arose under regulations 6 and 8, and he should have issued a screening direction himself. His failure to do so meant that he had never considered whether the development was EIA development, and he had thus, albeit unwittingly perhaps, fallen into the same error which had led to the quashing of his decision in Berkeley v Secretary of State for the Environment

[2001] 2 AC 603

. Mr Harwood submits that, although his challenge is to the decision of the First Secretary of State, he can rely on the unlawfulness of the Local Planning Authority's actions because they need to be lawful in order for the Secretary of State's own actions not to breach the obligation on him to ensure that development likely to have a significant environmental effect is not obtained without an EIA, an obligation the proper fulfilment of which entails the prior consideration of whether the development was of that sort or not.

Delegation and/or authority

[24]Mr Harwood submitted first that the opinion of Mr Raper was only a personal opinion and as it had not been made under delegated authority or in the name of the Director of Environmental Services it could not be regarded as the opinion of the council. He pointed out that there had been a resolution pursuant to section 101 of the Local Government Act 1972, whereby a number of functions had properly been delegated to a specific officer, the Director of Environmental Services. Among the many pages of delegated functions, large and small, was that of deciding whether an Environmental Impact Assessment was necessary. There was no provision in the Local Government Act for onward delegation by the specified officer.

[25]However, that is not the end of the matter because Mr Harwood recognised the persuasive authority of the decision of Schiemann J in Cheshire County Council v Secretary of State for the Environment [1988] JPL 30. That case concerned the authority of an assistant solicitor to issue an enforcement notice when the standing orders which dealt with delegated powers referred in this context, but not in others, to the County Solicitor and Secretary alone. The Secretary of State for the Environment had allowed an appeal against the enforcement notice on the basis that where a delegation had taken place to a named officer, a subordinate to whom no delegation had been made had no power to exercise the relevant discretion. The Secretary of State distinguished Provident Mutual Life Assurance Association v Derbyshire City Council

[1981] 1 WLR 173

on what Schiemann J; held in the Cheshire case was the fallacious basis that it was confined to the peculiarities of rate collection. Schiemann J in the Cheshire case held that it applied generally to local authority functions whether the issue of an enforcement notice or, as I would hold, the judgment as to whether a screening opinion was required. Mr Harwood did not really suggest otherwise.

[26]In Provident Mutual, Lord Roskill in the House of Lords had recognised that the particular individual on whom the task of forming the relevant opinion had been imposed could not possibly perform all the tasks delegated to the relevant financial officer, he had and needed a staff to perform his functions, and it was a member of his staff who had formed the relevant opinion. The question was not whether there had been a delegation so that the decision was not that of the treasurer but of the subordinate; the question was whether the treasurer had authorised the subordinate to act as his agent in forming the opinion. As Mr Mould, for the First Secretary of State, and Mr Fraser, for Calderdale MBC, pointed out, there was only limited evidence available in that case as to the existence of such authority: a resolution, practice and a statement as to what the person's job was.

[27]Mr Harwood drew my attention to two other cases in this context. In R v St Edmondsbury Borough Council ex parte Walton [1999] JPL 805 Hooper J, at page 808, held that the decision as to whether there should be an environmental statement was an important one, and that if an authority wished to delegate the decision to an officer, it had to do so formally and could not rely on some general practice alone. Whilst not taking issue with the actual decision in that case, I find it of limited assistance here. In Walton there had been no delegation at all to an officer, so the power remained with the committee or council, whereas here there has been a delegation to an officer and so it is more akin to the Cheshire case, which was not cited to Hooper J anyway.

[28]A delegation issue also arose in R (Goodman and Hedges) v Lewisham London Borough Council

[2003] EWCA Civ 140

, [2003] JPL 1309. Although it was not necessary for the court to consider the Cheshire case (and so far as I can tell it did not do so) the court was critical of the informality of the decision-making process, in that no note was kept of the decision that the development there was not Schedule 2 development, nor of the reasoning. Those are not problems which arise here, although there are other problems some of which I have adverted to already, but Mr Harwood in particular relied on the court's reference to the need for "formal and transparent consideration of environmental issues" under the Directive. Those remarks need, however, to be seen in the context of what had been done and omitted by the local planning authority in that case.

[29]The evidence provided by Mr Raper as to his authority and that of others below the rank of the Director of Environmental Services, who was not himself a planner anyway, was brief. The planning powers delegated to him, including the power to provide screening opinions, were exercised by "senior planning officers in his name and with his authority". In his second witness statement, Mr Raper added that it was common place for councils to operate in this way, with powers delegated to a chief officer, which were then exercised "by a suitably qualified member of staff. To do otherwise would be unworkable." As Mr Harwood pointed out, Mr Raper did not say in his evidence that he had signed the screening opinion or that he had signed it in the name of the Director of Environmental Services. I am prepared, in the light of the unwillingness of Calderdale MBC to have Mr Raper cross-examined, to accept that the screening opinion was not signed and did not say that it was being provided in the name of the Director of Environmental Services.

[30]However, I am quite satisfied that the true issue is not precisely how or whether it was signed by Mr Raper; that would be an unduly formalistic response to the real issue, however wise it would have been for the sheet to have been so signed. The real issue is whether or not in fact Mr Raper had the necessary authority in the light of the decisions in Cheshire and Provident Mutual. It seems to me on the evidence that there was authority given to Mr Raper and other senior officers, because that is what Mr Raper says. What he says also accords with common practice, as he says, and as Cheshire illustrates. It would be a common practice precisely because the Director of Environmental Services in person alone could not handle the range of matters, large and small, which are delegated to him, and a further chain of delegating resolutions would be unnecessary in the light of those authorities. A certain amount of realism is called for in judging the probability of such authority having been given. The giving of such authority would also reflect what actually happened here. The power can thus be exercised by Mr Raper in the name of the Director of Environmental Services. I see no need for there to be an express statement on any particular document to the effect that that was what was being done, though clearly to do so would be wise.

[31]It is not necessary for the document to be signed as such. There was no formal requirement for a signature. The purpose of a signature would be to authenticate the authorship and concluded nature of the document and to prevent it being thought that the document was not one which had been produced by the asserted author or was provisional in some way. Neither of those problems arise here. It is clear that the screening opinion was the work of Mr Raper and that it represented his concluded views on the issue. Accordingly, that ground of attack on the lawfulness of the screening opinion fails.

The EIA and the need for an environmental statement

[32]Mr Harwood next submitted that the screening opinion was unlawful because of the way in which traffic issues had been considered. He said that Mr Raper had not considered all the off-site traffic effects, and in particular the effect of the closure of the road which at present runs through the site. He also submitted that Mr Raper had admitted adopting an unlawful approach to whether an EIA was needed because his second witness statement acknowledged that he had not asked for one since the TIA which he knew was coming would provide the necessary information instead. This also showed that Mr Raper did not have enough information in order to decide whether or not this was an EIA development, a point repeated in relation to other matters.

[33]I do not accept the first point. I deprecate construing a screening opinion as if it were a more comprehensive analysis written by a lawyer to be subject to legalistic technical scrutiny, however much it may be said that a proper degree of formality should attend it. The brief comments in the screening opinion have to be seen in the light of the fact that the proposal would lead to the site becoming accessible for development-related traffic only. There is no basis for supposing that the comments were directed to the ability of the site itself to accommodate the new development traffic. The very reference to impact being greater in attracting cars is necessarily a reference to its off-site effect. The obvious problems for consideration lay off site from the new traffic seeking access to the site and from the effect of the closure of the road through the site, with the diversionary implications which that would have for traffic which had hitherto crossed the site to access that part of the road network which would now be used by development-generated traffic. With the evidence before me -- and that is very far from being sufficient to put me in the same position as Mr Raper, who had known the site for over 25 years -- it is impossible to tell what the major flows were, but it is obvious that some traffic which now does so, would not enter the site or exit from it via the network which would be used by development traffic in the future. In that context, to talk of "swings and roundabouts" seems to be a reasonable approach which does not involve any ignoring of any potentially relevant significant off-site effect. Even if the balancing effect which Mr Raper had in mind were to be felt at other parts of the network, perhaps at the eastern rather than at the western access, the "swings and roundabouts" reference would still show that off-site matters had been considered. I would have reached that conclusion without the evidence of Mr Raper in his second witness statement, in which in paragraph 5 he says that he did give consideration to the generation and diversion of traffic. I see no reason to doubt that, and none was suggested.

[34]Mr Harwood, in support of his second point, relied on the decision of Sullivan J in R (Lebus) v South Cambridgeshire District Council

[2002] EWHC Admin 2009

, [2003] JPL 466. The council there was considering an application for a very substantial egg production unit, which was a Schedule 2 development. The council, considering whether it was EIA development, said that it did not wish to get drawn into requesting an environmental statement simply to get information which it was going to receive anyway. Sufficient detail could be obtained without an environmental statement. There was no screening opinion at all in writing. Sullivan J described the premise that sufficient information could be obtained through other documents as "impermissible" and was an error of law. I agree. The decision of the House of Lords in Berkeley demonstrates that provision of information to the local planning authority or to the Secretary of State is not the sole function of an environmental statement, the need for which is thus obviated by the provision of information by other means. But, submits Mr Harwood, that is the error into which in 1999 Mr Raper fell.

[35]Although there is nothing in the screening opinion which suggests that is so, that error appears from Mr Raper's second witness statement. In paragraph 5, although this section is chiefly directed to his consideration of off-site traffic impacts, he says:

"However, it is the Council's case that it did take into account off-site traffic impacts. I was aware from knowledge of pre-application discussions with the applicant that a Traffic Impact Assessment was to be submitted along with the application. This TIA was expected to cover all traffic matters, including off-site impacts (and did indeed do so). With this expectation, I did not consider that traffic matters in themselves would have necessitated submission of an EIA since this would have involved unnecessary duplication. Nevertheless in assessing the need for an EIA I did give consideration to the questions of both the diversion of the existing traffic and distribution of traffic likely to be generated by the development (particularly cars) on to both the existing nearby road network and the new road to be built west of the site (to accommodate existing North-South traffic movements). My conclusion, based on my knowledge of the proposal and its location, was that on balance its impact would not be so significant as to justify the need for an EIA."

Mr Harwood relies on the sentence starting "With this expectation ... " Mr Mould and Mr Fraser rely on the rest of the paragraph, and in particular the last sentence.

[36]It was not possible to reach any view as to whether the TIA was available to Mr Raper at the time when he produced his screening opinion. It appears to have been submitted on 10th August 1999, and that postdates the 3rd August validation note, but it is within the three weeks which may have been taken to produce the screening opinion. However, the language of Mr Raper's witness statement is not that the TIA showed there to be no significant off-site traffic effects, which would have been a perfectly legitimate basis for reaching the conclusion that no environmental statement was necessary; his language is rather more that one was not necessary because a TIA would suffice. Although Mr Mould was more inclined to put a more favourable interpretation on what Mr Raper said in the sentence relied on by Mr Harwood in its context, Mr Fraser accepted that it did reveal an approach erroneous in law.

[37]Mr Fraser said that there were two reasons as to why no EIA was required according to Mr Raper's evidence. The first reason was the impermissible one that the information which he required would be provided by the TIA; the second was the permissible one that he did not think that traffic matters gave rise to any significant environmental effects. If Mr Raper was now prepared to admit that in 1999 he had made a mistake, albeit one which was being made by a number of local planning authorities and indeed the Secretary of State himself, there was even less reason to disbelieve him when he said that he had concluded that there was no likely significant traffic effect.

[38]I accept Mr Fraser's argument. I see no reason to reject Mr Raper's conclusion on the second reason which he had given. This was not one of those matters upon which Mr Harwood sought leave to cross-examine. There is no reason to believe Mr Raper when he expresses himself in a way which now reveals an error of law, which was not apparent on the screening opinion and came out three and a half years later, only as a result of his own evidence, and not to believe him when he puts forward another reason which is lawful. If he is being deceitful he would not have so expressed himself in a witness statement sworn in June 2003. Nor do I accept Mr Harwood's argument that this last sentence should be discounted. It refers to what was thought in 1999. It is not a later witness statement than the one in which the error was revealed, giving rise to a possible argument that it was a piece of ex post facto correction.

[39]I see no reason to treat the one reason as tainting the other; the two thoughts are perfectly consistent. There may well be a need for information in order to determine a planning application, which will include formulating conditions and provisions for a section 106 agreement, which it is not necessary to have in order to form a view as to whether the application is likely to have a significant environmental effect. The language of the requirement for a screening opinion deals with likelihood and significance and not with the level of certainty which would come from an environmental statement or a TIA. More information may be needed for the one but not for the other; that is perfectly understandable where the means of access was not reserved. The error of thinking that there was no need to ask for an environmental statement where the necessary information would come from the TIA, is consistent with the information being necessary only for the purposes of deciding whether to grant permission, or to formulate conditions or agreements and not for the purposes of deciding whether there would be a significant environmental effect.

[40]The fact that Mr Raper could reasonably have held those two views together is supported by the conclusion of the Inspector that no undue traffic impact would arise on the adjoining highway network; paragraph 10.46 of the Inspector's report. This is recorded as being the Local Authority's contentions as to what the TIA showed; see paragraph 5.1 of the Inspector's report.

Contamination and Conditions

[41]Mr Harwood's next point related to the way in which contamination had been dealt with in the screening opinion. In this context he relied on the comments of the Environment Agency in response to the statutory consultation process on the application. It replied in a letter of 13th September 1999, saying that:

"Please find below the comments from each specialist function of the Agency. Due to the complexity of the site and its environmental needs I believe a 'round table' meeting is necessary between Agency Specialists and all other interested parties, in order to progress the application. I therefore await your call at your convenience. The Agency has no objections, in principle, to the proposed development but recommends that if planning permission is granted the following planning conditions are imposed. ... Groundwater It is suggested that a meeting be held to look at this development and how our conditions would affect the development. We have already carried out some investigations and we are looking to the previous industrial activities on the site [which] may have resulted in contamination of the underlying land and groundwater. The site is underlain by alluvium and so any groundwater is likely to be in hydraulic continuity with the River Calder. The applicant may contact the Groundwater Section of the Environment Agency to discuss the scope of the contamination investigation and Reclamation Method Statement."

It recommended that a condition dealing with contamination be imposed.

[42]Although there is no reference in the Inspector's report to contamination as an issue at the inquiry or indeed as a factual matter in the Inspector's description of the site, he recommended that a condition dealing with contamination was necessary and it was ultimately imposed in the following terms:

"8. Development shall not commence until a scheme to deal with contamination of the site has been submitted to and approved in writing by the Local Planning Authority. The scheme shall include an investigation and assessment to identify the extent of contamination and the measures to be taken to avoid risk to the environment when the site is developed. The scheme shall be implemented in accordance with the scheme so approved before the relevant part of the development is brought into use."

[43]Mr Harwood said that the Environment Agency's consultation response showed that Mr Raper had ignored a material consideration; he had misunderstood the position on this site. Mr Raper in his first witness statement said that the time limits for providing a screening opinion meant that he had had to make his decision based on his knowledge of the site acquired over 25 years. Apart from the gardens, the whole site had been covered by buildings or concrete for decades; "there were no known pollution-creating uses." He pointed out that paragraph A18 of Annex A to Circular 2/99 1999, giving guidance for the assessment of significant environmental effects, referred to "a high level of contamination". He said in his witness statement that he regarded the later comments made by the Environment Agency in its consultation response as supportive of that assessment. Mr Harwood said that that showed that he had misunderstood the position because in reality Mr Raper and the Environment Agency were at odds to a degree.

[44]Mr Fraser and Mr Mould referred to paragraph 9 of PPG23 Pollution and Planning Control. This recommends that:

"9. In other cases, particularly where there is only a suspicion that the site might be contaminated, or where the evidence suggests that there may be only slight contamination, planning permission may be granted but conditions should be attached to make it clear that development will not be permitted to start until a site investigation and assessment has been carried out and that the development itself will need to incorporate all the measures shown in the assessment to be necessary."

This contrasts with the previous paragraphs, which recommend site investigation before the application is determined where:

"8. However if it is known or strongly suspected that the site is contaminated to an extent which would adversely affect the proposed development or infringe statutory requirements, an investigation of the hazards by the developer and proposals for any necessary remedial measures required to deal with the hazards will normally be required before the application can be determined by the local planning authority."

They said that the conclusions of Mr Raper showed it to be in the former category.

[45]Mr Harwood also submitted that it would be wrong in law for the decision on whether a screening opinion was necessary to depend on the availability of a standard condition of the sort which was imposed by the first Secretary of State. That could not necessarily be relied on to show that the development was not an EIA development. In Bellway Urban Renewal Southern, v Gillespie

[2003] EWCA Civ 400

, [2003] JPL 1287, a case which concerned a former gasholder site known to be extensively and significantly contaminated as a result of that use, the Secretary of State concluded that the proposed residential development would be unlikely to have any significant environmental effects, taking into account the fact that site remediation works would be carried out under a condition which set out, in a more detailed and stringent form than the one involved here, the need for a scheme of investigation and remediation to be undertaken. The issue was the extent to which, in assessing whether a development was EIA development, it was appropriate to have regard to the remedial and mitigating effects of what might be standard and readily anticipated conditions. Pill LJ, at paragraph 34, said:

"34. In his judgment in the present case, Richards J underlined, at paragraph 75, and in my view correctly underlined, Sullivan J's statement that each case will turn upon its own particular facts and that 'it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development'. I do, however, agree with Mr Lindblom's submission that the judgment as to whether an EIA is required is a judgment different from and to be made before an assessment of the procedures appropriate if an EIA is held to be required. 35. I also find persuasive the submissions on behalf of the Secretary of State to Richards J in the present case, though their relevance to the test actually applied by the Secretary of State will need to be considered. As summarised by the judge (paragraph 61), they were: 'On the information before him the Secretary of State was entitled to form the judgment that a development carried out in accordance with the stated remediation strategy was unlikely to give rise to significant effects. He was entitled to take the view that the outstanding details of the remediation works and the elements of uncertainty were not such as to affect the judgment or to create a likelihood of significant effects. In other words this was a case where the Secretary of State was reasonably satisfied that the boundary would not be crossed.' ... 37. The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously but the Secretary of State is not as a matter of law required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not in my judgment pre-determined either by the complexity of the project or by whether remedial measures are controversial though in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration. ... 39. It follows that I do not accept the submission of Mr Wolfe, for the respondent, that proposed mitigating measures are to be ignored when a screening decision is made or his submission that the 'proposed development' for the purposes of regulation 2 is the proposal shorn of remedial measures incorporated into it. That would be to ignore the 'actual characteristics' of some projects. He is, however, correct in his submission that devising a condition which is capable of bringing the development below the relevant threshold does not necessarily lead to a decision that an EIA is unnecessary. The test stated in Bozen requires a fuller scrutiny of the likely effects of the development project ... All aspects of the development project must be considered; the relevant considerations may be different in a case where the central problem is the eventual effect of the development upon the environment and a case such as the present where the central problem arises from the current condition of the land. 41. When making the screening decision, these contingencies must be considered and it cannot be assumed that at each stage a favourable and satisfactory result will be achieved. There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached."

Then Laws LJ said:

"46. ... Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted~... 47. ... but notwithstanding Mr Lindblom's protestations as to the degree of detail relating to remediation which had been put before the Secretary of State, as it seems to me the very terms of Condition VI show that the nature, extent and degree of the contamination present on the site had not yet been established, or precisely established; nor had the character of the site investigation that would be required."

[46]The other case relied on by Mr Harwood was R (Jones) v Mansfield District Council

[2003] EWCA Civ 1408

. Dyson LJ, at paragraph 38, said:

"38. ... It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie). The effect on the environment must be 'significant'. Significance in this context is not a hard-edged concept: as I have said, the assessment of what is significant involves the exercise of judgment. 39. I accept that the authority must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment. But this does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter. As the judge said, the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."

I shall have to return to those cases in the context of another submission by Mr Harwood relating to the adequacy of the information before Mr Raper.

[47]Here, in dealing with contamination, the first error of law alleged is that a material consideration was ignored. However, contamination was addressed in the screening opinion. It was addressed on the basis of the officer's very extensive knowledge of the site, its past uses, including a swimming pool which would have had some chlorine in it and its coverage with buildings and with concrete. This was not the sort of site, while the gasholder site in Gillespie, which by its nature will be extensively and significantly contaminated. Mr Raper was entitled to conclude as he did that the site was not likely to give rise to significant environmental effects through the fact of redevelopment, and the development itself was not said by anyone to be a pollutant development.

[48]It is misconceived to argue that if the Environment Agency held a different view that faults the conclusion of Mr Raper. Mr Harwood accepted that there was no statutory duty on Mr Raper to consult anybody before reaching a view as to whether development was EIA development, although there is an obligation implicit in the proper undertaking of that decision-making process that the officer establishes that he has sufficient information for that decision to be made. That may involve him in making inquiries of those who have greater knowledge or understanding of the particular issue, but it was not said that 25 years of personal knowledge was insufficient at that stage or that only the Environment Agency could reach the necessary view. It does not seem to me that the view reached properly by Mr Raper in August 1999 as to the existence of pollutants on the site can be challenged as a matter of law by the later opinion of the Environment Agency, even if they had differed.

[49]Second, Mr Harwood also seems to me to rely upon a fallacy as to the authority of the Environment Agency's views. The Environment Agency is not always right in its views; it cannot be said that simply because a consultee has later expressed what might be a contrary view to the one taken by the planning officer, that shows as a matter of concluded fact that the officer was wrong and ignored relevant facts. Still less can it be said that the view which he took was not one which was reasonably open to him as a matter of planning judgment at that stage. It was not the views as such of the Environment Agency which it was said were ignored; there was no duty to seek or to take them into account at this stage in the first place.

[50]Third, I regard the argument that the two views are incompatible as overstated. The Environment Agency does not suggest in terms that there are likely to be significant environmental effects because of contamination. Nor do I regard that as the message of the consultation response. The reference to a complex site may reflect a variety of considerations. The reference to the past land uses is only to the effect that they "may" have led to pollution of land and groundwater; but there is no reference to the probability of a significant effect.

[51]Mr Harwood put some weight in this context on the fact that a condition requiring investigation to be carried out had been imposed. This bore some kinship to the one in Gillespie which influenced Laws LJ to conclude that the remedial measures had not been sufficiently crystallised for the Secretary of State to take them into account in deciding whether the development was EIA development.

[52]There are two answers to that. First, I do not read Mr Raper's witness statement as saying that he relied upon the prospect of a condition of the sort imposed in order to reach his conclusion either that there was unlikely to be a significant environmental effect from contaminants or that he had enough information in order to reach that decision. I read him as saying that he, from his own long-standing knowledge of the site, did not think that there were any significant pollutants. The condition would be imposed later simply because there is no guarantee and out of caution there should be such provision - a stance which seems to be borne out by what the Inspector's report contains. That would be a commonplace and standard approach.

[53]I do not think that Laws LJ in Gillespie was intending to convey that every time such a condition is imposed, it indicates that there is a degree of uncertainty which requires to be met either by a pre-screening opinion investigation or which precludes a conclusion that the development is not EIA development. The key point is that that judgment depends on the facts of the individual case. Here the view was that there were no significant pollutants. This is to be contrasted with the position in Gillespie and the role of the scheme of remediation there in taking the development below the EIA threshold

[54]Second, even if Mr Harwood were right and Mr Raper had relied upon the anticipated condition in order to reach his view that the development fell below the EIA threshold and was not likely to have significant environmental effects, there was no evidence that this was a site where there were such uncertainties about what would be found and how it would have to be dealt with (in marked contrast to the position of a polluted gasholder site, which is known to have a range of highly polluting chemicals) that Mr Raper could not reasonably conclude that he had enough information about the proposal to reach a decision as to whether it was EIA development. It would have been a proper case in which to take that anticipated condition into account, if he had done so.

Sufficiency of information

[55]Mr Harwood's next point was that Mr Raper had insufficient information in August 1999 on which to reach a conclusion for the purposes of a screening opinion. In addition to the position on contamination and traffic, Mr Harwood relied on the fact that this was an application for outline planning permission with all matters reserved save the means of access. Thus siting, external appearance and the height of buildings were reserved matters. The extent of demolition, he said, was unknown. There could be a significant environmental effect because there was a listed building - a bridge - nearby. The indicative or illustrative drawings submitted with the application were insufficient, precisely because development was not proposed to be tied to them; something more akin to a master plan was necessary.

[56]Mr Harwood drew parallels between the requirements at the screening opinion stage, at which the project needed to be sufficiently certain for it to be assessed whether it was likely to have significant environmental effects, and the requirements at the later stage of the grant of planning permission for the development after consideration of an environmental statement, at which stage it was necessary to know that the planning permission granted was for the development assessed. The position at this later stage was clear from R v Rochdale MBC ex parte Milne [2001] JPL 407, Sullivan J, and his earlier decision in R v Rochdale MBC ex parte Tew [2000] JPL 54.

[57]I have already set out the authorities chiefly relied on by Mr Harwood, namely Gillespie and Jones. Mr Mould and Mr Fraser referred to what Elias J said in BT Plc and Bloomsbury Land Investments v Gloucester City Council [2002] JPL 993 as illustrative of the approach. That case concerned an outline planning application, with listed building and conservation area consents as well, for a major city centre development in an area containing a significant number of listed buildings and other historic buildings. Elias J had been unwilling on the evidence in that case to conclude that the lack of information on design in the conservation area must inevitably mean that no proper assessment of environmental effects could be made.

[58]I have already dealt with the information available on off-site traffic matters. I also consider that Mr Raper could reasonably conclude that his own knowledge provided him with enough information in order to be able to reach a proper opinion about contaminants. There has been no evidence to support any contention to the contrary.

[59]The main point, however, under this head relates to the availability of information on other matters in the light of the outline nature of the application, accompanied as it was by indicative material. 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, and to try to use it as a measure by which other cases had been judged.

[60]What was said in Jones 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.

[61]I accept that there may be cases in which the fact that an application is made in outline may lead to an argument, along the lines of the Rochdale cases, that it is not possible to reach a conclusion that a project is not likely to have significant environmental effects at the stage of the screening opinion. But that must depend on the facts of the case. It may also be that the standard conditions requiring details to be approved may enable an authority to conclude that significant effects are unlikely because of the controls available at the reserved matters stage in the light of the illustrative material showing how the development should be carried out. It will all be a question of judgment in the individual case as to likelihood and significance of effect.

[62]Indicative material can assist in judging whether the range of uncertainties is so great that a planning officer has insufficient knowledge to judge whether there are likely to be significant environmental effects, or whether there are some site layouts or designs of which it can be said that they would be likely and then likely to have significant effects. The planning officer will also be able to make a judgment about the degree to which standard conditions can at that stage be envisaged as sufficient to make unlikely those development layouts or components which would be likely to have significant environmental effects.

[63]However, in this case, I see no basis for concluding that Mr Raper could not rationally judge that he had enough material on siting, height and external appearance in order to reach the conclusion that there were unlikely to be significant environmental effects. This was a site which had already been developed and contained very substantial buildings which were widely visible. The site was covered in concrete. The indicative drawings showed an approach to siting and design which reflected the shape of the site and the extent of floorspace proposed. Mr Raper was entitled to suppose that this would be a conventional retail development with a certain predicability in its siting of retail units and car parking and that the height and design of the retail units would be orthodox. I consider that a planning officer, of 25 years, should be regarded as having sufficient experience of common forms of development to know the general way in which such sites are usually laid out and the sort of heights and external appearance to which such buildings are usually designed. He is not obliged to approach his consideration of the screening opinion as if it were the first time he had ever seen such a development. The only material with which Mr Harwood challenges Mr Raper's conclusion that he had enough information is Mr Harwood's own advocacy. There is no evidence from any planner to show that in the circumstances of this case it was not reasonably open to Mr Raper to reach the conclusion which he did. Mr Harwood's reference to the listed bridge is wholly insufficient to make out his case.

[64]The floorspace for the retail units and the number of car parking spaces were certain; he knew of the proposed replacement swimming pool. He could also take the indicative drawings into account to see if there were any significant environmental effects revealed as likely, with the way in which the developer was thinking of laying out the site or if there were any unusual features in contemplation. Mr Harwood pointed to none.

[65]Mr Harwood said that the extent of demolition was unknown; I do not know what basis he has for saying that but he has none for saying that the significant effect of demolition of the silos and mills was unknown. There is simply no evidence that supports Mr Harwood's contention. Nor is there anything in the appraisal in the Inspector's report to which Mr Harwood would point as supporting his position. He did not seek to rely on the visual improvement that the development was seen as bringing. Mr Raper's thinking is also consistent with the guidance set out in paragraphs 33 and A18 and A19 of Circular 2/99. Mr Harwood emphasised the need for screening opinions to be comprehensive, but they only have to be made on sufficient information to enable the question posed by the Regulations to be answered.

[66]Mr Harwood linked those points with the procedural failings, to which I now turn, to say that the screening opinion had not been undertaken with the formality and transparency required. I do not think that the failings in formality - for example the shortness of the opinion, the fact that it was in handwriting but unsigned - should here detract from the essential points, which are that an opinion was reached by an authorised officer, it was recorded in writing and contained, although it did not have to, a short reasoned justification. It was put on publicly available files, though it later came off them. Mr Harwood's argument turns the phraseology apt for the circumstances considered in Lebus into an unnecessary requirement for a degree of formalism which, while no doubt called for in the interests of efficient administration, are not legally necessary.

[67]However, Mr Harwood also submitted that the screening opinion was flawed because of more significant procedural failings. It is a requirement of regulation 5(5) that the screening opinion be sent to the applicant for planning permission. It is accepted that that was not done. I should point out that the applicant for planning permission has not complained about that; it is a rival commercial developer, seeking to stop the development applied for who is trying to take advantage of that omission. It is also a requirement of regulation 20 that the screening opinion be placed on the planning register. Again it is common ground that it was not placed on the planning register. It is a requirement of the Directive that the screening opinion be made available to the public. That requirement has been transposed into domestic law by the requirement to place the screening opinion on the register. Accordingly, although the screening opinion was in fact available to the public, because the screening opinion was on the publicly available files of the local planning authority at various times and the letter of 4th July 2000 was always on the file, the requirement of the regulation transposing the Directive was not met.

[68]Mr Harwood appeared to submit that these failings by themselves meant that the Secretary of State's decision should be quashed and that only a very limited discretion was available to the court as a result of the decision of the House of Lords in Berkeley. I do not accept any such submission. Assuming for the moment that a flaw in the procedures of the sort here are capable of giving rise to a section 288 challenge, I do not see that they fall within 288(1)(b)(i) - action not within the powers of the Secretary of State - rather than within (ii) - a failure to comply with relevant requirements.

[69]If they fall within the latter, it is necessary for the Claimant to show that its interests have been substantially prejudiced by that failure before the discretionary power to quash arises under section 288, however limited that may be, section 288(5(b). There is no evidence that the Claimant's interests have been prejudiced at all, nor is it possible to see how they could be. It acquired its interests in the site in March 2002, knowing of the call-in, the Inquiry and of the minded-to-grant letter. It did not pursue any interest in the decision made in 1999 about whether an environmental statement was necessary until after planning permission had been granted in November 2002, following conclusion of the section 106 agreement. It has not been remotely affected by the procedural failures; rather it has been provided with an uncovenanted opportunity to attack the planning permission.

[70]In so far as it was ever suggested that that failure could fall within section 288(1)(b)(i) because of the European Directive background in the Berkeley decision, it is misconceived. The failure on the part of the Secretary of State in Berkeley to consider whether the development required environmental assessment led to the decision to grant planning permission being void under section 288(1)(b)(i), because it was implicit in the then regulation 3 that he had to consider that point in order to comply with the statutory duty in regulation 3, the then equivalent of regulation 4 of the 1999 Regulations. By regulation 25 (the equivalent of regulation 30 in the 1999 Regulations) a breach of regulation 3 meant that the subsequent decision was not within the powers of the Secretary of State. The limited discretion which in those circumstances was available under domestic law was further constrained by the need to ensure compliance with EC obligations contained within the Directive and Treaty. There had been no substantial compliance with the obligation to consider the issue; it was a misconception to treat the process of environmental assessment as simply being the furnishing of information to the decision-maker. It would therefore have been wrong to allow the exercise of the residual discretion to uphold the decision on the basis that it would have made no difference to the decision if there had been an environmental statement.

[71]However, those considerations do not apply to the breach of Regulations here, even though they are part of the transposition of EC obligations into domestic law. They are procedural provisions which cannot, on any view of the Regulations or Directive, go to the question of whether there had been a breach of regulation 5 or 8 or of Article 4(4) of the Directive. The now explicit obligation to consider whether development was EIA development was in fact fulfilled. The effect of regulation 30 is to make a breach of regulation 3 or 25 one which causes the decision to fall outside the powers of the Secretary of State. Those provisions were not breached.

[72]It is a curious quirk of the new Regulations that a breach of regulation 4, which is the explicit expression of the previously implicit obligation, breach of which led to the quashing of the decision in Berkeley, is not expressly covered by regulation 30. This must mean that regulation 30 cannot be regarded as the exclusive expression of breaches which might cause the decision to fall outside the powers of the Act. However, the two essential obligations are to consider whether development is EIA development and, if so, to require an environmental statement. I do not say that other errors cannot cause the decision to fall outside the powers of the Secretary of State, but the errors involved here are not of the nature which would cause that to arise. I do not think that the distinction between the two parts of section 288(1)(b) is one which the European context requires to be narrowed.

[73]But if it did, it is relevant to note that in Berkeley, Lord Bingham at page 608 and Lord Hoffmann at page 617 recognised that in the European context there was still a discretion where the error was "so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed" (Lord Bingham) and "if there was a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law" (Lord Hoffmann). I do not read those remarks as requiring a different approach in this case to section 288 (1)(f)(ii), because the context of what they had to say did not require consideration of the second limb of section 288(1)(b). What is important is that the nature of the error in that case fell within the first limb and was not to be seen as rectified by any conclusion, which might well have been correct, that the outcome would not have been different had the law been complied with. The Secretary of State's error was to treat the requirement for consideration of whether an environmental statement was needed and its subsequent provision if necessary, as a procedural and not a substantive requirement. That is a far cry from saying that the same effect is attributable to all procedural requirements relating to the production of a screening opinion and an environmental statement.

[74]If this were a matter of discretion under limb (i) and not simply a matter where the relevant requirements of section 288(1)(b) necessary for a quashing had not been met because there has been no substantial prejudice to the Claimant, I would nonetheless not quash the decision even under the more limited residual discretion: the essential features of the Regulations, namely the obligation to consider whether the development was EIA development, was fulfilled. There was no such conclusion that it was, so no environmental statement was necessary. The screening opinion was made in writing and it was in fact publicly available. The Claimant has suffered no prejudice at all. There is plainly a significant degree of public interest in the permitted development and the acts relied on took place some years ago and were not concealed from the gaze of anyone minded to inquire, and could have been challenged in law.

The availability of judicial review

[75]My conclusions thus far would be sufficient to dispose of this claim. However, I ought to refer briefly to some further submissions made by Mr Mould and Mr Fraser. They would arise had I concluded either that there was no screening opinion because there was no authority in Mr Raper to make it so that the apparent screening opinion merely recorded the personal opinion of one officer, or had I concluded that the screening opinion was deficient in one or other of the ways asserted by Mr Harwood.

[76]Both pointed out, correctly, that the decision under challenge was that of the Secretary of State to grant planning permission; it was not a judicial review of any failings of the Local Planning Authority. They submitted that the errors relied on did not vitiate the Secretary of State's decision, although Mr Fraser went a little further than Mr Mould. Both submitted that the failings of the Local Planning Authority were capable of being judicially reviewed, and as they had not been and were still not being judicially reviewed, the screening opinion had to be regarded as a valid screening opinion until quashed. No such quashing would be produced by success for the Claimant in this challenge and so the necessary substratum for a quashing of the decision letter could never arise. Mr Fraser went so far as to submit that the requirements of regulation 8 only meant that it had to appear to the Secretary of State that there was a screening opinion at the time of this decision not to pursue a screening direction, even if one had not been in existence at all because of the delegation or authority issue.

[77]They contested Mr Harwood's reliance on R (Burkett) v London Borough of Hammersmith and Fulham

[2002] UKHL 23

[2002] 1 WLR 1593

, for his argument that he could challenge the decision of the First Secretary of State, even though the basis upon which he sought to do so was one which could have been raised by judicial review and raised long before the parties had incurred the time and trouble which they undoubtedly had. Mr Harwood submitted that, as a matter of principle, where the antecedent or underlying decision was unlawful, that unlawfulness could be relied on to vitiate the subsequent or dependent decisions without the need for the earlier decision to have been judicially reviewed. He also submitted that, if such a challenge were successful, it had the effect of avoiding the underlying decision so that that would be treated as if it had never been effective. This, he said, could be seen in cases other than Burkett; it was the analysis of Berkeley; the planning permission in the BT, Gillespie, Lebus and Jones cases had all been dealt with on that basis. Gillespie indeed involved a challenge to the Secretary of State's decision under section 288.

[78]Had I concluded that there had been no effective decision by Calderdale MBC because Mr Raper had no authority, I would have concluded that the Secretary of State had breached his duty under regulation 8. Regulation 8 has to be read as part of the means whereby the obligation not to permit development which is likely to have a significant environmental effect, without environmental assessment, is discharged. I do not think that, if there is no screening opinion because "the opinion of the relevant planning authority" (see the definition of 'screening opinion') has never been given and all that there is is personal expression of view by an officer, regulation 8 can be satisfied.

[79]First, I consider that in order to make regulation 8 effective as part of that mechanism, the reference to what appears to the Secretary of State is confined to whether the development proposed is Schedule 2 development. The requirements in regulation 8(1)(b) and (c) after the semi-colon at the end of (a) are not ones which can be satisfied by what appears to be the case to the Secretary of State; they must in fact be satisfied. The nature of the two latter components of regulation 8(1) is different from that in (a). I appreciate that what, on this hypothesis, would have been Mr Raper's personal opinion could easily have appeared to the Secretary of State to be a screening opinion and that he could only have discovered the true position by making inquiries which nothing would have alerted him to make. But I do not consider that the requirement of the Regulations and Directive can be met simply by the appearance that all was well.

[80]This argument was put forward by Mr Mould and Mr Fraser with greater force in relation to the contention that the screening opinion was deficient in other respects. There was a screening opinion and the First Secretary of State was entitled to rely on it, they submitted, without making any further inquiries as to its qualities, or as to whether some facet had been overlooked, particularly as a screening opinion did not require to be accompanied by reasons. The fact that it might later have been found to be deficient as a screening opinion, so deficient as not to amount to a screening opinion at all, could not alter the position as at the time when the First Secretary of State made his decision.

[81]I recognise that any conclusion which names the First Secretary of State can find that a screening opinion of the relevant planning authority is unlawful some years after his decision that regulation 8 was satisfied and after time and money has been spent, is very unsatisfactory from the point of view of the whole inquiry and decision-making process, but those are points which go to such discretion as there might be. I do not regard a screening opinion which is so defective as to be liable to be quashed had it been attacked at the time by judicial review as one which can be said to be a screening opinion for the purposes of the Regulations. It would undermine the fulfilment of the obligations in the Regulations if a legally deficient screening provision, legally deficient in its substance, could nonetheless fulfil the obligations of the Secretary of State when he relies upon it.

[82]Mr Mould and Mr Fraser further suggested that as the screening opinion was itself a judicially reviewable decision and there has been no judicial review of it, the effect of quashing the screening opinion could not be achieved by the means of a challenge under section 288 to the grant of planning permission. The screening opinion had to be regarded as good for the purposes of this case. They distinguished Burkett on the ground that the resolution in that case which could have been challenged but was not and did not have to be, was an act which had no certain legal consequences, which might or might not lead to the grant of planning permission. So the House of Lords, balancing the various factors, had concluded that there was no need to challenge the resolution; the planning permission could be challenged on the same grounds which arose in respect of the resolution. By contrast here the screening opinion did have certain legal consequences; it laid the foundation for the regulation 8 opinion of the First Secretary of State, it could lead to a request for a screening direction from him, it had to be given within a defined period of time, and above all it is a necessary step in the Regulations for the decision-making procedures to continue.

[83]There is some force in these points, but I was not persuaded by them. I accept that the adopting of a screening opinion has legal effects and is different in that way from the resolution to grant planning permission. It is a judicially reviewable act. But I do not think the reasoning in Burkett was crucially dependent on the lack of legal effect attributable to the resolution. It is to be noted that the basis for the attack on the resolution and the planning permission was that the environmental statement was deficient in a number of respects. The Court of Appeal had regarded the provision of the environmental statement as a necessary step on the road to a planning permission. It is clearly parallel to the adoption of a screening opinion. The House of Lords rejected a suggestion that time ran from the date of submission of the impugned environmental statement.

[84]The real point was that the stage at which the Claimant's rights were definitively at issue was the grant of planning permission, even though there were a number of steps in the decision-making process which had to be gone through for that permission to be issued. Some of those did have legal consequences akin to those attributed to the screening opinion here. But there was no certainty that the rights of those aggrieved would be affected until the grant of planning permission by the local authority in Burkett, or by the First Secretary of State here.

[85]That permission can be challenged by statute, on those grounds which could have founded a challenge to the steps en route. Burkett makes it clear that the challenge can be made to the substantive decision at the end of the process on the grounds of an earlier reviewable error which itself had some legal consequences for the continuation of the process. This approach is in line with the decisions in Gillespie, where the Secretary of State's decision was challenged on the basis of his deficient screening opinion, in Jones, where the planning permission was challenged by reference to the deficient decision on the screening opinion, and no one suggested that it could not be, and the same is true of Lebus.

[86]There is a distinction in that here the deficiencies relied on are not those of the Secretary of State directly, although it is his decision which is sought to be impugned. But that is not a point of legal significance. The lawfulness of the Secretary of State's decision under regulation 8, which is obviously a legitimate ground for a section 288 challenge, is critically dependent on the lawfulness of the decision upon which he relies for the carrying out of his function. There would be a considerable hole in the Regulations and in the ability of United Kingdom to meet its Directive obligations if the fact that the decision under challenge was that of the Secretary of State meant that the decision which he relied on, but which was unlawful, was thereby shielded from scrutiny and his own became protected. The administrative inconvenience to the process is in essence no different from that which arises in respect of any process which can be challenged at the end on grounds which were available for challenge at an earlier stage.

[87]It may be that in certain cases the discretion of the court would be exercised against the claimant, even allowing for the strict limits enjoined by Berkeley, if the application for judicial review were thought to be abusive, perhaps, for example, where the problem had been known to a claimant who had deliberately kept quiet about it, allowing expenditure to be incurred, only to spring the point at the end of the process, too late for remedial measures, in order to gain the advantage in a tactical battle. But it was not suggested that this was such a case. It may also be that if the discretion available on judicial review is wider than that apparently available under the Act and in the light of Berkeley, there might be scope for recognising that the statutory discretion could be a little wider than thought in order to reflect the availability of judicial review in respect of those intermediate steps. It would be unfortunate if the available discretions were different in respect of the same point and it was the advantage of the narrower one which could be achieved by waiting for a statutory challenge.

[88]However, for the reasons which I have given, this application is dismissed.

[89]MR MOULD: My Lord, I invite the court to dismiss the application with the First Secretary of State's costs.

MR JUSTICE OUSELEY: Yes.

[91]MR MOULD: This is not a case where the parties have prepared schedules for costs, and so I invite the court to do so on the basis of detailed assessment, if the costs are not earlier agreed.

MR JUSTICE OUSELEY: Yes.

[93]MR HUNTER: There is also an application for costs on behalf of the Calderdale Metropolitan Borough Council.

[94]MR JUSTICE OUSELEY: This is an unusual case so far as the Local Authority's costs are concerned in the light of what was said about what they had done. I think you cannot resist, can you, Mr Burton, the first application for costs?

[95]MR BURTON: No, my Lord, but I do resist the second.

MR JUSTICE OUSELEY: Yes.

[97]MR BURTON: I resist it on the basis, my Lord, that Calderdale's attendance, if required at all, was due entirely to its own unfortunate administrative failings, and those, my Lord, you have referred to in your judgment.

[98]Dealing with the substantive issues, Calderdale added one point to the argument advanced by the Secretary of State, and that point, my Lord, you dealt with at the end of your judgment and dismissed, and that was the regulation point. On that basis, those two grounds - the first that Calderdale attended to deal with its own inadequate evidence and material documentation failings and the second that it actually lost on the only point it alone advanced - justify, in my submission, no order for costs for Calderdale in this case.

JUDGMENT ON COSTS

[99]MR JUSTICE OUSELEY: I am going to make an order for costs in favour of Calderdale and I will explain briefly why.

[100]Mr Burton is quite right, it would not be normal for there to be a second order for costs, but this is an unusual case. This is a case in which the decision of the Secretary of State was sought to be impugned by an attack upon what the local authority had done. It is the local authority which had the information, that provided the evidence and explanation in relation to what had been going on. The nature of the allegations, therefore, by themselves would have necessitated the provision of evidence and investigation. But the allegations went beyond that. The allegations, however they were in the end not pursued, involved, it seemed to me, some very serious imputations on the integrity and truthfulness of the local authority witnesses. The evidence of Mr Ibberson and Mr Pickles can quite properly be stigmatised as willing to wound but afraid to strike. In the end they did not pursue the points which they had sought to do and the application for cross-examination in the end was not persisted in after certain things that Mr Fraser said which clarified the issues. But I do not think it is open to the Claimant to put forward the sort of points it did do without reasonably anticipating that the local authority would be bound to seek to attend and defend what it said.

[101]It also follows that, although Mr Mould is well able to make a number of submissions in relation to local authority matters, the assistance of Mr Fraser dealing with points of delegation and authority in relation to what he was considering was of considerable assistance. In a number of ways - some helpful to the Claimant - he was able to express what had been done by the Local Authority and to advance the case with appropriate concessions and acknowledgments. So for those reasons a second award of costs is appropriate. They will go for detailed assessment.

[102]MR BURTON: The final matter, my Lord, is I am instructed to seek leave to appeal. The case quite clearly raised important issues regarding EIA assessment, and in particular, my Lord, the question of delegation here is one that is of general importance given the need that an EIA will follow democratic accountability lines and that the public know exactly who is making the decision and how it comes about. So in particular on the delegation point, my Lord, I ask for leave to appeal upwards.

MR JUSTICE OUSELEY: Do you want to say anything object that, Mr Mould?

[104]MR MOULD: Your Lordship has dealt with that point on the facts of the case and in the light of established principles from authorities your Lordship has relied upon. In my submission there is nothing here which the Court of Appeal needs to look at and the merits of the case are clear in the light of your Lordship's judgment.

MR JUSTICE OUSELEY: Do you want to say anything, Mr Hunter?

[106]MR HUNTER: No, my Lord.

JUDGMENT ON LEAVE TO APPEAL TO COURT OF APPEAL

[107]MR JUSTICE OUSELEY: I am not going to grant permission. This is a case which turns very much on the application of established principles to its particular facts. The established principle in relation to delegation is that there is the line of authorities from Provident Mutual through Cheshire, a decision which now is getting on for fifteen years old and as a decision has acquired respectability through its antiquity and lack of reversal and may be regarded as established authority; it is constantly referred to when this issue arises and I have never heard it suggested it was wrong. The cases Mr Harwood cited are cases in which the judge did not have the benefit of his attention being drawn to the relevant authority.

Cited in 10 later judgments

and 1 more case

Ghadami v Harlow District Council & Anor 2004