Candlish, R (on the application of) v Hastings Borough Council [2005] EWHC 1539 (Admin)

Case No CO/154/2005

[2005] EWHC 1539 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

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

Date Thursday, 14 July 2005

Before

MR JUSTICE DAVIS

Between

R (Carol Candlish)Claimant

Hastings Borough CouncilDefendant

Hastings and Bexhill Renaissance Limited Interested Party

(trading as Sea Space)

Dr David Wolfe (instructed by Public Interest Lawyers) for Claimant

Mr Hereward Phillpot (instructed by Borough Solicitor, Hastings Borough Council) for Defendant (Hastings B.C.)

Mr Richard Harwood (instructed by Hammonds) for Interested Party (Sea Space)

Judgment

Davis J :

[1]The principal, although not only, point in this case involves an issue of interpretation of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”). The issue perhaps can be put compendiously in this form: where an application for planning permission is for a development which, taken on its own by reference to the application, would not require an assessment of the likelihood of significant effects on the environment, is such an assessment nevertheless required if at the time that development is prospectively part of a wider development?

The factual background

[2]The point arises in this way.

[3]The Claimant, Mrs Carol Candlish, lives at an address in Hastings, East Sussex. Her home is near to a site on which had stood in days gone by the former Mount Pleasant Hospital, which was demolished in the 1990’s. The land had long since been regarded as having potential for housing development: in fact planning permission for that purpose had previously been granted, albeit it had since lapsed.

[4]In 1997 the Millennium Communities Programme was launched. One selected Millennium Community proved to be Hastings and Bexhill. As part of that programme a plan, known as the Hastings and Bexhill Five Point Plan, was approved in 2002, with an initial financial allocation of £38 million: the aim being to provide regeneration to the area. A company called Hastings and Bexhill Renaissance Limited (which trades under the name “Sea Space”), a subsidiary of the South East of England Development Agency, was established for that purpose. One major aspect of the Five Point plan was to propose development of an area in the Ore Valley, sited on the north-eastern edge of Hastings Borough: that area including the Mount Pleasant site. The area in question covered about 67 hectares: and the proposals were for a mixed development, prospectively involving 700 residential homes; 4,000 square metres of business offices (Class B1); 1,500 square metres of retail (Class A1/A3); as well as open spaces and other ancillary developments.

[5]As was predictable, the proposals have attracted both support and opposition. Those in support will doubtless have welcomed the potential boost to housing and employment in the area. Supporters currently include Hastings Borough Council. Those in opposition will have had concerns about the disruption caused by major construction works; environmental and ecological issues; objection in principle to the further concretisation, if such a word be permitted, of the South-East of England; and the like.

[6]The proposal advanced by Sea Space was that the Ore Valley Project should proceed in 2 phases. Phase 1 would be the submission of a detailed planning application for infrastructure proposals, and associated surface water attenuation measures, for part of the Mount Pleasant site. Phase 2 would be the subsequent submission of an outline planning application for the wider Ore Valley project.

[7]In due course, on the 13th August 2004 Sea Space submitted a Planning Application with regard to part of the Mount Pleasant site (the application site amounting, as I was told, to 1.9 hectares). The proposal was stated to be for a “Spine Road and associated mini-roundabout and surface water attenuation works”. The application was accompanied by a lengthy Planning Statement (dated 12th August 2004) by Gerald Eve, on behalf of Sea Space. It was entitled “Hastings Millennium Community: Ore Valley: Phase I Planning Application”. At the outset of that statement it was stated:

“This planning application .... represents the first of two planning applications that seek to obtain permission for the Hastings Millennium Community Proposals in Ore Valley.”

A little later on it was stated “This detailed planning application ... represent[s] Phase 1 of the Millennium Community Proposals and form[s] part of the wider Ore Valley proposals that will be submitted for outline planning permission in Autumn 2004”. It was stated that, to meet deadlines, it had “been necessary to bring forward Phase 1”, which was described as a “key element” of the proposal, prior to the submission of the wider Ore Valley proposals; and that development of the spine road would enable the first phase of the residential development, being part of the “wider Millennium Community Proposals”, to be brought forward.

[8]A detailed Ecology Report relating to the application site, supporting the planning application, was also produced. That report in terms acknowledged that there would be a separate application with regard to Phase 2, supported by an Environmental Statement and that there would have to be an Environmental Impact Assessment (EIA) with regard to Phase 2: which EIA would also include Phase 1. In fact Gerald Eve had previously submitted in July 2004 a Scoping Report (as permitted by the 1999 Regulations) with a view ultimately to obtaining a Screening Opinion from the Local Authority with regard to Phase 2. In addition to the Ecology Report, other reports were also prepared and before the Council in connection with the Phase 1 planning application. These included a Reptile Mitigation Strategy; a Design Statement (relating to contaminants); and a Badger Report.

[9]On 13th October 2004 the Borough Planning Officer reported to the Planning Board of Hastings Borough Council with regard to the planning application, referring to the proposal as being “to serve Housing Development Site” (that, as counsel before me agreed, referring to prospective housing on the Mount Pleasant site itself). The report in fact stated that “it is anticipated that the surrounding land will be developed for housing” and mentioned that the Mount Pleasant site was shown as allocated in the local plan as a housing site to accommodate 45 dwellings. It said:

“In the unlikely event of [the road] not extending further into the Millennium Community site the road would still be required to serve residential development on the Mount Pleasant Hospital site …”

The report, reflecting the planning statement of Gerald Eve, described the application as representing the first phase of the Ore Valley Millennium Community project. The report also referred to various issues, including ecology issues. There was, among other things, discussion of issues concerning badgers and surface water drainage with regard to contaminated soil. The report concluded that the application was a “welcome first phase of the Millennium Community Scheme in this area ... ”; and recommended the grant of permission, subject to conditions.

[10]Mrs Candlish opposed the planning application. She wrote vigorous letters to object. Her points among other things included the raising of concerns as to badgers with setts in and near the application site and as to contamination. She also lodged a petition, which presumably is that referred to in the Planning Officer’s report, which recorded that four letters and a Petition of Objection had been received.

[11]In the event, planning permission was granted on the 15th October 2004, subject to conditions.

[12]On the 14th December 2004 a fax was received by the Council from solicitors acting for the Claimant specifically querying whether the conditions had been met so as to permit the commencement of operations on the site; and also saying they had been instructed to consider the possibility of a judicial review challenge to the grant of the planning permission. On the 15th December 2004, an application for an injunction was threatened; and the question of the need for EIA also was raised. On the 24th December 2004 the Council responded, among other things, stating that no EIA was required and that the proposed challenge was “fundamentally misconceived”. The letter also stated that the proposed development was not part of a larger scheme and that the Council had carried out an “informal EIA” in any event. There was further correspondence; and in the event the Claim Form was issued on the 13th January 2005, just within the 3-month limit laid down in CPR 54.5. No letter before the Claim Form had been sent to Sea Space.

[13]No application for planning permission in respect of Phase 2 has to date been made.

The procedural history

[14]The Claim Form raised four grounds of claim. The first, and principal, ground was that in granting planning permission the Council had breached the requirements of the 1999 Regulations. The other grounds asserted a failure to take into account the issues relating to the wider scheme, and a failure properly to consider the issues relating to badgers and to contamination. In argument before me, Mr Wolfe (appearing on behalf of the Claimant) abandoned the last three grounds, which he said were in any event subordinated to his first ground. The sole ground pursued, therefore, related to the application of the 1999 Regulations. It is accepted that the Claimant has sufficient standing to bring such a claim.

[15]On the 11th February 2005 Collins J granted permission, saying that the point about the 1999 Regulations seemed to him to be arguable, and also, albeit expressing scepticism, indicating that the other points (specifically the badger point) could be pursued. He also said this:

“While there has been delay, the IP [Sea Space] has not suggested that it will be prejudiced and no prejudice is relied on in the Acknowledgement of Service”

. It is correct that Hastings Borough Council, the named Defendant, has never sought to argue prejudice arising from any delay that had occurred: although it did and does nevertheless object to the grant of permission on the ground of lack of promptness. But the Interested Party, Sea Space, had lodged an Acknowledgement of Service, taking the point about lack of promptness and relying on specific prejudice allegedly resulting to it. That latter Acknowledgement of Service, through administrative oversight, had not been drawn to the attention of Collins J. In the light of further representations made, Collins J then revoked his earlier grant of permission, and by order of 17th February 2005 directed an oral “rolled-up” hearing, to enable the delay point to be argued but on the footing that (as Collins J expressed it) “otherwise the matter will be treated as if permission had been granted”.

[16]The matter was listed for hearing with a time estimate of 2 days; and the argument took place over such a time period, detailed written arguments having been lodged in advance. Mr Wolfe appeared for the Claimant; Mr Phillpot appeared for the Council; and Mr Harwood appeared for Sea Space.

[17]The structure of the written arguments of each party was to deal with the issue of delay at the end; and when Mr Wolfe opened his address to me he did so by reference to the 1999 Regulations. I then queried with him and Mr Phillpot and Mr Harwoood whether the question of delay should not be dealt with first at the hearing, since the question of the grant of permission depended on that. (I add that neither the Council nor Sea Space has sought to rely on delay as a ground for withholding relief if the claim were otherwise established: see s.31 (6) of the Supreme Court Act 1981). They replied that they did not wish that course to be adopted: indeed all counsel before me made it clear that they did not relish an outcome whereby, if the promptness point was decided adversely to the Claimant, there would be no adjudication on the underlying substantive issue under the 1999 Regulations.

[18]All the same, having regard to the way in which this matter came before me and having regard to the order of Collins J of 17th February 2005, I do think it appropriate to deal with the issue of promptness first.

Promptness

[19]Rule 54.6 provides that a claim for Judicial Review must be issued promptly and in any event within 3 months of the date of the decision challenged. As already noted, this claim was issued (just) within the 3-month period. Although some queries have been raised in some quarters as to whether the requirement of promptness, as stipulated by the rule, is sufficiently certain it is, on binding authority, clear that the courts must apply the words of the rule to the facts of each case.

[20]In the field of planning it seems to me to be of the greatest importance that challenges should be notified at the earliest practicable moment. It is not necessarily sufficient or appropriate to defer the intimation or issue of a claim to the end of the 3-month period mention in the Rule. As often as not, perhaps more often than not, developers wish, for commercial and financial reasons, to press on with a development as soon as planning permission has been obtained. That, I think, is a general consideration I should bear in mind here.

[21]In the present case, so far as prejudice is concerned the Council does not assert any prejudice to it arising from any want of promptness. But Sea Space does. The prejudice which it says arises is financial in nature. In his first witness statement dated 3rd February 2005, Mr James Saunders, manager of Sea Space, stated that following the grant of planning permission Sea Space commissioned wildlife mitigation works which were, he said, an “essential precursor” to the implementation of the planning permission. Generally, the expenditure incurred after the grant of planning permission he identifies (perhaps on a non-exhaustive basis) as Engineering Design Fees (£69,300); Planning Consultant’s Fees (£3,000); Safety Audit (£1,000); Fencing (£29,173); Topsoil Strip (£8,091); Consultant Ecologists Fees (£17, 581); and Sett Closure Fences (£930): a total of £129,075. Precisely when those works were undertaken, or expenses actually incurred, is not spelled out.

[22]In a further witness statement dated 22nd March 2005, Mr Saunders explained that there had been an error in his first witness statement, in so far as it said that the wildlife mitigation works had been commissioned after the grant of planning permission. He said that the contract for such works had in fact been “let” (in his word) before the grant of planning permission. He says however that that expenditure was actually incurred after the grant; and that “it is likely that a significant part of those costs could have been avoided” following a prompt notification of a challenge to the grant of planning permission. He makes the like suggestion with regard to the Engineering Design Fees, Safety Audit Works, Planning Consultant Fees and Ecologists Fees. In correspondence, the Claimant’s solicitors suggested that earlier letters had suggested that much, if not all, of this work had been undertaken prior to the grant of planning permission and that those works had simply then carried on after the grant. They asked for disclosure of all relevant contracts and invoices: which the solicitors for Sea Space declined to produce.

[23]In dealing with the issue of delay, no witness statement on behalf of the Claimant had been put in to explain her position. When I queried this with Mr Wolfe, he maintained that she was not required to (which is true) and in any case did not need to (which is altogether more debateable). He asserted that on their own evidence the Council and Sea Space had not shown any lack of promptness or any sufficient prejudice such as to justify the refusal of permission. Mr Wolfe maintained that stance to the end. However, perhaps appreciating that such an approach was not being received altogether favourably by the Judge he was addressing, he on the morning of the second day of the hearing sought to put in a witness statement prepared overnight by the Claimant’s solicitor. I gave leave to him to adduce it, Mr Phillpot and Mr Harwood very fairly indicating that they did not object.

[24]That statement does provide material relevant to the issue of promptness. It explained that the Claimant, who is a pensioner with severe mobility difficulties, first sought legal advice about the planning permission on the 4th November 2004, consulting the local Citizens’ Advice Bureau. The CAB considered it too complex a matter for them and gave her a list of names of local solicitors. She felt that many would be compromised (as having acted in the past for the Council on other matters) and one firm she did approach said it had no relevant expertise. After carrying out some enquiries, she on 12th November 2004 contacted Mr Wolfe at Matrix Chambers. He very properly referred her to solicitors, suggesting Public Interest Lawyers, a firm based in Birmingham. Papers were then obtained and were considered by that firm at the end of November 2004. There were telephone conversations with the Claimant, she complaining that in her view planning conditions were being breached. In addition, the question of Legal Aid had to be addressed. A conference in due course took place on 13th December 2004 at the Claimant’s home and further papers were provided. Letters of objection on behalf of the Claimant were then faxed by the solicitors to the Council on 14th and 15th December 2004. As to the failure to send copies of such correspondence to Sea Space, and in particular to send a copy of the pre-action protocol letter, dated 15th December 2004, the solicitor concerned very fairly accepts responsibility for this. She accepts that such a letter should have been sent; but that was not done, in part due, as she explained, to various pressures. She suggests, however, that it is surprising that the Council – given its close relationship with Sea Space on this matter – had not informed Sea Space. As to that, Mr Saunders in his first witness statement says that he had in fact been told by the Council in December 2004 that it was being said on behalf of the Claimant that the development was being commenced in breach of the planning conditions. He says in paragraph 9 of that statement that Sea Space was entirely confident that was not so, since “the development had not commenced”, and so did not need to take any action in response. However he says that Sea Space did not know and had not been told by the Council that there was a challenge to the lawfulness of the grant of planning permission until notified on the telephone by the Council on 17th January 2005: the day before Sea Space itself received the claim form.

[25]I think it understandable, and reasonable, for the Claimant to have taken some time to consider her position; and also she did reasonably have to spend time in finding a suitable firm of solicitors who would act for her. It was then reasonable for the solicitors to spend some time in investigating what was potentially quite a complex matter and to arrange to see the Claimant at her home. I accept, therefore, that some elements of the time-frame involved can not fairly be attacked. Even so, I do think that, in the circumstances of a potential challenge to the implementation of a planning permission and where (as was known to the Claimant) at least some works were continuing on the site, a delay of some 2 months before the intimation of any challenge (on 14th December 2004) was unduly long. Thereafter, I do not think there was any unreasonable delay before this claim form was issued on 13th January 2005, in the light of the intervening correspondence: but it was unfortunate, to say the least, that Sea Space had not by this time been brought in by the Claimant’s solicitors on the correspondence.

[26]The issue of prejudice is clearly of great significance in this context. The prejudice argued for on behalf of Sea Space is financial in nature. But it seems to me on the evidence that a significant part of the expenditure identified in Mr Saunders’ statement relates to works undertaken in the immediate aftermath of the grant of planning permission (in some respects, indeed, pursuant to a contract pre-dating the grant) and which is not shown, in causational terms, to be linked to undue delay on the part of the Claimant in first intimating a challenge. Further, Mr Saunders himself did not regard such works as the commencement of the development. Moreover, there is no breakdown of the periods in which the various items of expenditure were incurred; and it seems that some were incurred even after 15th December 2004 (when Sea Space itself knew of a potential challenge, at least by reference to the planning conditions). Indeed, given that –as Mr Saunders accepts – the challenge by reference to the conditions was regarded as no deterrent to Sea Space in continuing its works (since Sea Space was confident of its position) I rather think that Sea Space might not have been deterred from continuing such works even had it been told (as it should have been by the Claimant’s solicitors) that there was a challenge, on environmental impact grounds, to the lawfulness of the grant of planning permission. For the position both of the Council and of Sea Space always has been to assert confidence in their position on this point also, and to regard the present claim as misconceived and unarguable. In fact, it is to be noted that Mr Saunders’ witness statement is phrased very cautiously in this regard: he says on more than one occasion in his second statement that costs “could have been” avoided following prompt notification of a challenge to the grant of planning permission by way of judicial review. Nowhere does he in terms say they would have been.

[27]As to the failure to notify Sea Space of the letter of 15th December 2004 that was an error, and a significant one – after all it was Sea Space which was the beneficiary of the grant of planning permission and Sea Space which was undertaking the site works. But it remains of relevance that Sea Space did at least know in December 2004 that a challenge of some kind to the implementations of the planning permission was being made, albeit by reference to the conditions; and that it was unmoved by that. I also have some sympathy with the suggestion of the Claimant’s solicitor that it might have been expected, in view of the effective communality of interests on this particular matter, that the Council would have apprised Sea Space of the development with regard to the EIA claim: although that is not an entire justification, as is accepted, for the failure to send Sea Space direct a copy of the pre-action letter.

[28]In all the circumstances, and considering the explanations advanced on behalf of the Claimant and the issue of prejudice to Sea Space, I do not consider that there has been such a degree of lack of promptness here as to warrant a refusal to grant permission.

[29]It follows, in the light of the order of Collins J of 17th February 2005, that permission is granted. I therefore go on to consider this matter as a substantive claim for Judicial Review.

Legal Background

[30]It is necessary to set out, in some degree of detail, the legal background to the 1999 Regulations.

[31]The 1999 Regulations are designed to implement Council Directive 85/337/EEC which was substantially amended (in ways important to this present claim) by Directive 97/11/EC.

[32]In its original form the Directive had been stated to apply to the assessment of the environmental effects of those public and private projects which were likely to have significant effects on the environment (Article 1). Article 2 provided for Member States to adopt all measures necessary to ensure that, before consent was given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size and location were made subject to an assessment with regard to their effects: those projects being defined in Article 4. Article 4 provided (broadly) that projects specified in Annex I must have such an assessment; whereas those specified in Annex II should be subject to such an assessment where Member States considered that their characteristics so required. Article 4 of the unamended Directive goes on to provide as follows:

“To this end Member States may, inter alia, specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects and classes listed in Annex II are to be subject to an assessment in accordance with Articles 5-10”

. Effect was given in England and Wales to that Directive by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.

[33]Amending Directive 97/11 was adopted on 3rd March 1997 and came into effect on the 3rd March 1999. The detailed recitals to that Directive include the following:

“ (7) Whereas projects of other types may not have significant effects on the environment in every case; whereas these projects should be assessed where Member States consider they are likely to have significant effects on the environment; (8) Whereas Member States may set thresholds or criteria for the purpose of determining which such projects should be subject to assessment on the basis of the significance of their environmental effects; whereas Member States should not be required to examine projects below those thresholds or outside those criteria on a case-by-case basis; (9) Whereas when setting such thresholds or criteria or examining projects on a case-by-case basis for the purpose of determining which projects should be subject to assessment on the basis of their significant environmental effects, Member States should take account of the relevant selection criteria set out in this Directive; whereas, in accordance with the subsidiarity principle, the Member States are in the best position to apply these criteria in specific instances.” (8) Whereas Member States may set thresholds or criteria for the purpose of determining which such projects should be subject to assessment on the basis of the significance of their environmental effects; whereas Member States should not be required to examine projects below those thresholds or outside those criteria on a case-by-case basis; (9) Whereas when setting such thresholds or criteria or examining projects on a case-by-case basis for the purpose of determining which projects should be subject to assessment on the basis of their significant environmental effects, Member States should take account of the relevant selection criteria set out in this Directive; whereas, in accordance with the subsidiarity principle, the Member States are in the best position to apply these criteria in specific instances.”

[34]The recitals to Directive 85/337, in its amended form, include a recital to the effect that development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of those projects. Another recital states that “projects of other types may not have significant effects on the environment in every case and … those projects should be assessed where the Member States consider that their characteristics so require.”

[35]Article 1 of the Directive in part provides as follows:

“Article 1 1. This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment. 2. For the purposes of this Directive: 'project' means: the execution of construction works or of other installations or schemes, other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources; 'developer' means: the applicant for authorization for a private project or the public authority which initiates a project; 'development consent' means: the decision of the competent authority or authorities which entitles the developer to proceed with the project.” . . . . . Article 2.1 provides as follows “Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4.”

Article 3 provides for the content of an EIA. Article 4 then provides as follows:

“1. Subject to Article 2 (3), projects of the classes 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.”

Article 6.4 provides that, where there is to be an EIA, public consultation must take place before the decision is taken on development consent. It is not necessary specifically to refer to other provisions in the Directive or to the Annexes: save that it is to be noted that Annex III includes, as one relevant characteristic of a project to be considered, “ the cumulation with other projects”. 'project' means: 'developer' means: 'development consent' means: . . . . . “Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4.” Article 3 provides for the content of an EIA. Article 4 then provides as follows: “1. Subject to Article 2 (3), projects of the classes 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.” Article 6.4 provides that, where there is to be an EIA, public consultation must take place before the decision is taken on development consent. It is not necessary specifically to refer to other provisions in the Directive or to the Annexes: save that it is to be noted that Annex III includes, as one relevant characteristic of a project to be considered, “ the cumulation with other projects”.

'development consent' means:

[36]That Directive (in both its unamended and amended form) has attracted litigation, leading to decisions of the European Court of Justice relevant to the issue arising in the present case.

[37]In Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland

[1997] 3 CMLR 1

, there was an issue as to whether certain proposed dyke works fell within the ambit of the Directive (in its unamended form) and as to the effect of the regulations passed in the Netherlands designed to implement the Directive. The Court referred, in the course of its judgment, to the provisions of Article 4.2 of the Directive permitting Member States to provide criteria or thresholds. As to that, the Court said this at paragraph 49 of its judgment. “49 The interpretation put forward by the Commission, namely that the existence of specifications, criteria and thresholds does not remove the need for an actual examination of each project in order to verify that it fulfils the criteria of Article 2(1), would deprive Article 4(2) of any point. A Member State would have no interest in fixing specifications, thresholds and criteria if, in any case, every project had to undergo an individual examination with respect to the criteria in Article 2(1).” Then, having referred to Article 2.1, the Court proceeded to say this: “52 In a situation such as the present, it must be accepted that the Member State concerned was entitled to fix criteria relating to the size of dykes in order to establish which dyke projects had to undergo an impact assessment. The question whether, in laying down such criteria, the Member State went beyond the limits of its discretion cannot be determined in relation to the characteristics of a single project. It depends on an overall assessment of the characteristics of projects of that nature which could be envisaged in the Member State. . . . . . 53 Thus a Member State which established criteria or thresholds at a level such that, in practice, all projects relating to dykes would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of the directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment.” . . . . .

[38]As I see it, there are two clear implications from these passages in the judgment. First, the Court was in principle approving the right of Member States to impose criteria and thresholds and thereby upholding the proposition that there was not required to be an individual examination of each project in each case to assess whether or not there would be significant effects on the environment. Secondly, however, thresholds and criteria generally speaking could not properly be set so as to provide, in practice, an effective exemption from EIA to all projects of a certain type.

[39]An example of the working of the Kraaijeveld principles can be found in the case of Commission of the European Communities v Ireland [1999] ECR I – 590, also a decision on the Directive in its unamended form. The facts were complex. It involved a complaint by the Commission that Ireland had not correctly transposed the provisions of Article 4 (2) of the Directive, Ireland having imposed absolute thresholds for certain kinds of project, including afforestation/land reclamation and extraction of peat. The Commission said that some sites potentially involved were particularly sensitive, and might be national heritage areas. Further, it was said that a number of separate projects individually might not exceed the relevant thresholds (and so not require EIA); but taken cumulatively such projects might have significant environmental effects. So far as afforestation was concerned, Ireland (in the light of previous challenge by the Commission) had in fact reduced its previously set threshold from 200 hectares to 70 hectares. The Commission regarded that as an improvement but still inadequate; and the complaint continued to be that the Irish legislation still failed to take sufficiently into account the potential cumulative effect of projects. The (main) response of Ireland to such a complaint in summary was that it was theoretical and that the use of thresholds had been sanctioned in Kraaijeveld.

[40]The Court indicated that regard must be had, in laying down criteria or thresholds, not only to the size of projects but also their nature and location (paras 65;70). As to cumulation, this was said; “73 As regards the cumulative effect of projects, it is to be remembered that the criteria and/or thresholds mentioned in Article 4(2) are designed to facilitate the examination of the actual characteristics exhibited by a given project in order to determine whether it is subject to the requirement to carry out an assessment, and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged on the territory of a Member State (Commission v Belgium, cited above, paragraph 42, Kraaijeveld, cited above, paragraph 51, and

Case C-301/95

Commission v Germany

[1998] ECR I-6135

, paragraph 45). 74 The question whether, in laying down such criteria and/or thresholds, a Member State goes beyond the limits of its discretion cannot be determined in relation to the characteristics of a single project, but depends on an overall assessment of the characteristics of projects of that nature which could be envisaged in the Member State concerned (Kraaijeveld, paragraph 52). 75 So, a Member State which established criteria and/or thresholds at a level such that, in practice, all projects of a certain type would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive unless all the projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment (see, to that effect, Kraaijeveld, paragraph 53). 76 That would be the case where a Member State merely set a criterion of project size and did not also ensure that the objective of the legislation would not be circumvented by the splitting of projects. Not taking account of the cumulative effect of projects means in practice that all projects of a certain type may escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the Directive.” The Court, having made some pointed comments to the effect that no project for peat extraction in Ireland ever had been the subject of EIA and, as to afforestation, having made comments concerning the prospect of different adjoining owners implementing afforestation so as to keep within the 70 hectares limit, decided that the relevant Irish legislation had set thresholds selected for those classes of project without ensuring that the objective of the Directive would not be circumvented by the splitting of projects. It is clear from that decision that objection was not being taken by the Court to the introduction of criteria or thresholds as such; the objection was that the subordinate legislation had not properly implemented the Directive in that the criteria and thresholds for these types of projects had not sufficiently addressed the prospect of circumvention by splitting.

[41]It is also plain that if EIA is required then – as the wording of the Directive makes clear – it is required before a decision on the relevant development consent is taken. It is established that where the requisite EIA is not undertaken, it generally is no answer to say that the same conclusion would have eventuated anyway: Berkeley v Secretary of State for the Environment (No 1)

[2001] 2 AC 603

[42]The issue of cumulation was also addressed in the opinion of the Advocate –General in the case of Bund Naturschutz in Bayern B.V v Freistaat Bayern [1994] ECR I – 3717, by reference to the Directive in its unamended form. In that case, planning consent had been sought (as was the practice) for a section of road: which section was contemplated to form part eventually of an entire road link. One complaint raised was that EIA should have been undertaken for the entire road link and that it was wrong to give consideration only to the specific link for which development consent was being sought. The Advocate General thought that the “optimal solution” was for EIA with regard both to the routing of the entire length and to the specific construction projects for each section. But having so stated, he went on to say this:

“67. That is, however, not a solution that the Member States are bound to choose under the EIA Directive. As stated by Freistaat Bayern and the three governments which have submitted observations, it is not possible to interpret the directive to the effect that it makes an environmental impact assessment mandatory for anything other than the specific projects submitted by developers to the competent authorities in order to obtain authorization to carry out construction or other works · even if the actual application relates to only one part of a longer road link which, as normally happens in practice, is to be constructed in stages. 68. The principle underlying the directive is unambiguous: an environmental impact assessment is to be carried out for projects in respect of which the public or private developer is seeking development consent (see on this point Article 1(2), Article 2(1) and (2), Articles 5, 6 and 8 in particular, which all assume that applications have been submitted for consent to a project). 69. That result is confirmed by the difficulties which could arise in laying down what comprises an "entire project" when that concept is not the same as "a specific project in respect of which an application has been submitted". In addition, there might be difficulties in carrying out an environmental impact assessment as provided for in the directive for projects which have not yet been worked out in detail. It must be self-evident that the directive cannot indirectly have the effect of forcing the Member States to depart from the normal practice according to which long road links are executed by constructing sections over staggered periods. 70. It is, however, undoubtedly correct that, as the United Kingdom points out, the purpose of the directive should not be lost by the projects which should be subject to an environmental impact assessment being given a form which renders an environmental impact assessment meaningless. The Member States must ensure that the obligation to carry out an environmental impact assessment is not circumvented by a definition that is over-strict or otherwise inappropriate, in the light of the purpose of the directive, of the projects in respect of which application must be made.”

In the event, the Advocate – General (having gone on in para. 71 to make some salient observations on the applicable approach where EIA is required for specific projects) gave his concluded opinion by reference to other matters: as did the Court, which in consequence did not in its judgment deal with that earlier aspect discussed by the Advocate- General.

[43]The need to give effect to the objective of the Directive was also emphasised by the Court in World Wildlife Fund v Autonome Provinz Bozen

[2000] 1 CMLR 149

. This was said at paragraph 45 of the judgment:

“Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects.”

The 1999 Regulations

[44]The 1999 Regulations were introduced to give effect to the amended Directive. They came into force on 14th March 1999. They superseded previous EIA Regulations.

[45]The recital to the Regulations (SI 1999 No 293) expressly stated that the Secretary of State had taken into account the selection criteria in Annex III to the Amended Directive (cf. Article 4.3 of that Directive).

[46]In Regulation 2, which contains definitions, “EIA application” is defined as follows:

“an application for planning permission for EIA development.” “EIA development “is defined as follows: “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:” “Schedule 1 application” and “Schedule 2 application” are defined to mean an application for planning permission for Schedule 1 development and Schedule 2 development respectively. “Schedule 2 development” is defined as follows: “development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where – (a) any part of that development is to be carried out in a sensitive area; or (b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development;” “Screening opinion” is defined to mean a written statement of the opinion of the relevant planning authority as to whether development is EIA development. “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:” “development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where – (a) any part of that development is to be carried out in a sensitive area; or (b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development;”

[47]Regulation 3 provides that planning permission may not be granted in respect of an EIA application in the circumstances there set out, unless the decision maker had first taken the environmental information (itself defined in regulation 2) into consideration. Regulation 4 which provides general provisions relating to screening includes, among other things, the following provisions:

“(5) Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development. . . . . . (8) The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of “Schedule 2 development” is satisfied in relation to that development.” . . . . . (8) The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of “Schedule 2 development” is satisfied in relation to that development.”

[48]Regulation 5 provides for requests for a screening opinion from the local planning authority; and provides that such opinion is to be produced within 3 weeks of request. Regulation 6 relates to requests for screening directions from the Secretary of State. Regulation 7 (1) provides as follows:

“Where it appears to the relevant planning authority that – (a) an application for planning permission which is before them for determination 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 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1).”

Regulation 8 relates to determination of references to the Secretary of State of an application for planning permission. There follow various other detailed Regulations. (a) an application for planning permission which is before them for determination 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 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1).”

[49]There then are the Schedules to the Regulations. Schedule 1 (which, of course, covers those cases where there must be an EIA) includes developments such as power stations, motorways, integrated chemical installations and so on. It is not relevant to the present case. Schedule 2 contains the descriptions of developments and applicable thresholds and criteria for the purposes of the definition of “ Schedule 2 development”. Paragraph 1 contains definitions, which include an extensive definition for “area of the works.” Paragraph 2 is headed “The carrying out of development to provide any of the following-” There follow descriptions contained in the first (left) column and applicable thresholds and criteria contained in the second (right) column. It is to be noted that sometimes the applicable threshold is, for example, set by reference to “the area of the development”; sometimes to “the area of the works”; sometimes to “the area of the floor space”; and so on. Sub – paragraph 10 of paragraph 2 relates to “infastructure projects”. It includes, at (a), industrial estate development projects. The threshold set out in the second column for that category is an area of development exceeding 0.5 hectares. (b) relates to urban development projects: the threshold also is an area of development exceeding 0.5 hectares. (f) relates to construction of roads (unless included in Schedule 1): the threshold is an area of the works exceeding 1 hectare. It perhaps may be noted that sub-paragraph 13 includes, by reference to any change or extension of development, a stipulation in the second column that the thresholds and criteria are applied to the change or extension, not to the development as changed or extended. As to Schedule 3, that contains the selection criteria for screening Schedule 2 development. It corresponds to Annex III to the amended Directive. By paragraph 1 the characteristics of development which are required to be considered include the cumulation with other development.

[50]It may be noted that, in contrast to the Directive, the word “project” does not feature in any significant way in the body of the 1999 Regulations (although mentioned in the recital and in Schedule 2). The emphasis in those Regulations is on “development”. In Article 2 of the Directive, however, the reference is to “projects” (as defined in Article 1 and Article 4) which are made subject to a requirement for “development consent”. In many cases a “project” can no doubt be taken as being coextensive with a “development”. But the wording of the Directive, as I see it, at least gives rise to the prospect that a “project” may be more than just a “development” for which development consent is sought. One possible example may be a section of road for which development consent is sought but where the practical reality is that (for example) a service station will in due course be needed; another example may be a development for which consent is sought where, in reality, there will have to be significant ancillary works. But this is not the subject of any further definition or explanation in the Directive. Submissions

[51]Against that rather complex legal background, the respective submissions can, I think, be summarised in this way (although I acknowledge that such a summary hardly does justice to the detail and length of the written and oral submission advanced to me).

[52]It was common ground before me that the actual “area of the works” to which the Planning Application of 13th August 2004 relates was properly assessed as being less than 1 hectare. (It is said that it could amount to no more than 0.4 hectare). It was also common ground before me that no part of the development, however that is defined, in this case falls within a “sensitive area” as defined in the Regulations. In addition, Mr Wolfe expressly accepted that there is no suggestion that what has been done here was a deliberate ploy designed to evade the impact of the EIA regime. On the contrary, it is evident that there was no such ploy and it is evident that neither the Council nor Sea Space, which has been entirely open about its long-term aims, had considered that the EIA regime could apply to this application for Phase 1. Their understanding was that such regime would only apply at the stage of the Phase 2 application (assuming there was one) and that at that stage EIA would then include within it Phase 1 also.

[53]Mr Wolfe’s argument was to this effect:52.1 The 1999 Regulations must be construed and applied so as to give effect to the purpose of the Directive.

52.2 If EIA is required, it must take place before a decision on planning consent is made.

52.3 Phase 1, for which the planning consent was sought, has no meaningful existence on its own. The only rationale for the existence of the spine road and associated works is to provide access to the contemplated residential development of the Mount Pleasant site and thereafter Phase 2 (the Ore Valley project). In the absence of that, it is a road which has no function or use.

52.4 In the present case, the reality is therefore that Phase 1 is part of an overall “project”; and, as such, the application for development consent for Phase 1 must be treated cumulatively and as part of that overall project and in conjunction with Phase 2. Were it otherwise, the need for EIA in respect of Phase 1 will have been circumvented by the splitting of the project, and thence the applications for development consent, into two. The 1999 Regulations must therefore be construed and applied so as to extend the EIA regime to such a situation and to give effect to the purpose of the Directive.

52.5 If that is so, then the area of development involved plainly exceeds that set out in the appropriate respects in the second column of Schedule 2, in particular by reference to sub-paragraphs 10 (a) and (b); and as such is a “Schedule 2 development”.

52.6 Accordingly, the Council was required, before taking its decision on the planning application, to assess whether the development taken as a whole was “EIA development”: in particular, whether it was likely to have significant effects on the environment by virtue of factors such as its nature, size or location.

52.7 Since, on its own admission, the Council has made no such assessment – since it took the view that the development for which consent was being sought was not Schedule 2 development (as defined) – the decision to grant planning permission was unlawful and must be quashed.

[54]The arguments of Mr Phillpot and Mr Harwood were to this effect:-53.1 The assessment of whether the application for development consent involved a Schedule 2 development (as defined) was to be decided by reference to the application itself.

53.2 On the face of the application, the application was properly determined as not being a Schedule 2 development: since no part of it was in a sensitive area and the threshold stipulated for roads (as set out in Schedule 2 – viz. 1 hectare) was not exceeded.

53.3 That approach accords precisely with the natural meaning of the 1999 Regulations.

53.4 So far from being contrary to the purpose of the amended Directive, that approach is in fact consistent with it. The 1999 Regulations accord with the provisions of Article 4 (2) of the Directive, as amended: which makes clear that a case-by-case analysis is not required in each case and that thresholds may properly be set, provided the criteria in Annex III were first taken into account: and here the Secretary of State (as confirmed by the recital to the 1999 Regulations) had taken those criteria into account.

53.5 The assertion of “cumulative effect” underlying the asserted need for EIA is in any event theoretical only and has no practical bearing on this particular case or generally with regard to the relevant thresholds set out in Schedule 2 of the 1999 Regulations.

53.6 Accordingly the Council was correct in considering this not to be a Schedule 2 development and the planning permission was lawfully granted.

Disposition

[55]I did query with Mr Wolfe what the practical purpose of these proceedings was. It seems clear that the Council and Sea Space had carried out an amount of ecological and environmental assessment with regard to Phase 1 (even if not constituting EIA as such). Further, it was common ground that if the Phase 2 application proceeds –as the Claimant considers is bound to happen – then at that stage there would be EIA extending also to Phase 1. So why these proceedings? Mr Wolfe’s answer was to acknowledge that this present claim was founded on procedural matters: but the Claimant was, he said, entitled, before any decision was made on the planning application, to require the correct procedures to be followed, if the Phase 1 application was indeed an EIA application. Further, he submitted that the Claimant retains genuine concerns about the badger and contamination issues by reference to Phase 1 even if taken on its own: those issues (he says) might well have received fuller consideration had there been EIA at this stage; and that also provides justification for this claim. On the whole, although retaining some unease about the practical value of this claim, I am prepared to accept those answers.

[56]Mr Wolfe candidly acknowledged that if one took the 1999 Regulations on their own, by reference to the natural and ordinary meaning of the words used, the decision of the Council was “unimpeachable”. In my judgment, that must be right. Both the structure and the language of the 1999 Regulations are clear. Before consent for development can be given it must first be assessed as either a Schedule 1 development or a Schedule 2 development. A Schedule 2 development is only an EIA development if it is likely to have significant effects on the environment. But the issue of likelihood of significant effects only falls to be considered where the development is a Schedule 2 development (assuming no sensitive area is involved). There is therefore a two stage process: and the question of whether an application is an EIA application (that is, likely to have significant effects on the environment) only arises if the application has first been assessed as a Schedule 2 application (as defined): cf. also R (Goodman) v LB of Lewisham [2003] EWLR 28;

[2003] EWCA Civ 140

at para 7 of the judgment. The definition of “EIA application” and the wording of, for example, Regulation 7 also show that it is the application for planning permission which is to be considered for that purpose.

[57]Moreover, such an interpretation and approach is clear and easily workable by planning officials.

[58]Mr Wolfe, however, submitted that implementing regulations generally should be construed so as to give effect to the purpose of the particular Directive requiring implementation: see, for example, Marleasing SA v La Comercial Internacional de Alimentacion SA

[1990] ECR I-4135

. Further, he submitted that this particular Directive had a wide scope and a broad purpose: see para 31 of the Kraaijeveld judgement. I accept those submissions.

[59]Mr Wolfe then submitted that the reality here was that this particular planning application was part of a wider project. The spine road had no meaningful existence on its own: it only had any purpose if there followed residential development of the Mount Pleasant site to be followed in due course thereafter by the totality of the Ore Valley project. In my view, while one cannot predict as a matter of inevitability what will happen, the present indications are that it is probable, although not certain, that eventually there will hereafter be an Ore Valley development of some kind (even if not corresponding entirely to the present proposals); and it is very probable indeed that there will at the least be residential development of the balance of the Mount Pleasant site. Certainly the evidence showed, in my view, that no application would have been made for the Phase 1 development were it not for the proposals with regard to the Phase 2 development: the reports submitted on behalf of Sea Space are quite clear and open about that. Further, the spine road has no function without some further development.

[60]Mr Wolfe’s position thus was that here there was in substance an application for a wider project than simply the spine road; that that wider project involved an area of development clearly exceeding any applicable threshold (by reference to sub-paragraphs 10(a) and 10

(b) of paragraph 2 of Schedule 2): and so called for EIA. I might add that that approach could be said – although I did not have any note that Mr Wolfe said it – at least to fit with the title words to the various categories and columns contained in paragraph 2 of Schedule 2, viz:

“The carrying out of development to provide any of the following …”

It could thus be asserted that the spine road development was being carried out to provide an industrial estate development project and/or urban development project in the form of the Ore Valley project.

[61]I cannot, however, accept these submissions. It is plain that the 1999 Regulations are geared to the actual application for development consent. That that is a legitimate approach for a Member State to adopt seems to me to be indicated by the definition of “development consent” and the references thereafter to such consent in the amended Directive. It also accords with the observations of the Advocate –General in paragraphs 67 to 69 of his Opinion in Naturschutz. In my view there is no justification for treating the word “development”, as used repeatedly in the 1999 Regulations, as though it means “project” of some wider kind: and the Regulations are clear that the relevant assessment is to be made by reference to the application for planning permission. Indeed were it otherwise, there could be difficulties in any given case in assessing just what “project” might be involved or, even if there was some wider project in mind, just what form it might take. These are precisely the considerations alluded to by the Advocate-General in the Naturschutz case. In this context, however, I would perhaps not give quite so much emphasis to that particular point as Mr Phillpot and Mr Harwood did. After all, if there is a Schedule 2 development (as defined) the planning authority in deciding whether such development is EIA development (see Regulation 4 (5)) must do the best it can in assessing, for example, cumulation implications. Even so, this present case illustrates the practical difficulties potentially involved in Mr Wolfe’s argument. Here, the planning application for Phase 1 in respect of the spine road (and associated works) was not just ostensibly an application for such development; it was in fact an application for such development. If – as Mr Wolfe’s argument connotes – it is nevertheless in some way to be treated as an application for the Ore Valley project then that poses difficulties for the assessment said then to be required: for even if there was a probability that there might be some eventual Ore Valley project there could be no certainty at all as to what eventual size and form (e.g. in the mix of housing, shops, offices etc) it might ultimately take or be permitted to take: assuming planning permission for that project was granted at all.

[62]Mr Wolfe’s alternative submission (which I think was really a variation of his first submission) then was that the imposition of criteria and thresholds could not be a complete answer when the development which is ostensibly the subject of the planning application has no meaningful existence or purpose independent of a wider project (which wider project would exceed the stipulated thresholds).

[63]I had some difficulty with the emphasis that Mr Wolfe placed in this context on a development having no “independent existence” (his phrase). Clearly, if that is the case, that is a very strong factual pointer to there being a wider project in contemplation. But I cannot see that it necessarily has any legal bearing on the interpretation of, or application of, the 1999 Regulations. For example, an urban development project, for which planning consent is sought, may have an area of development not exceeding 0.5 hectares but may be a perfectly viable and sufficient project in its own right: the developer, however, may openly accept that he would not have sought development consent for that development purely taken on its own and only does so because it would be a good starting point for further development on an adjoining site which he hopes to be able to achieve. On Mr Wolfe’s argument, that scenario also must, as I see it, attract the EIA regime: even though the initial application relates to a development having an “independent existence”.

[64]Be that as it may, underpinning Mr Wolfe’s submissions was the proposition that the overriding purpose of the Directive is to subject to the EIA regime all projects with the potential for having significant effects on the environment to the EIA regime. It can be accepted that that, broadly, is indeed the purpose (see, for example, Bozen at para 45). But to my mind it is self-evident that the Directive (in particular, by Article 4.2) has, by permitting the creation of criteria and thresholds, refined that purpose (in the sense that such criteria and thresholds are, generally speaking, considered permissible and not defeating the principal purpose). Were it otherwise, then, as is pointed out in the Kraaijeveld case, such criteria and thresholds would themselves have no purpose. The recitals to Amending Directive 97/11 themselves had made clear that Member States are not required to examine cases falling below the thresholds or outside the criteria on a case-by-case basis. As put by Schiemann LJ in Berkeley v Secretary of State for Environment (No 2) [2002] Env. L.R. 14;

[2002] EWCA Civ 1012

at para 47: “The amended Directive is not intended to prevent all development which is likely to have a significant effect on the environment. It is intended to improve the quality of the decision making process in a group of cases … In relation to developments falling within Annex II the Community has recognised that in some cases it will be desirable to insist that the EIA procedures be gone through but that this will not be desirable in all cases”.

[65]When it was put to Mr Wolfe in argument that his approach would involve every planning authority being required to assess every planning application on a case by case basis (viz. to assess cumulation and to see if a wider project was directly or indirectly involved) he had difficulty in disagreeing. But he asserted that in 9 cases out of 10 there would be no difficulty for a planning authority and in any event in order to achieve the overriding purpose of the Directive a purely mechanistic approach on the part of planning authorities should be avoided. With respect, that submission does not, in my view, give effect to the rationale of the Directive permitting Member States to provide for thresholds and criteria. Further, in Berkeley No 2 where the main issue was whether it was permissible for this country to establish, by the 1999 Regulations, guidelines which in the relevant respects could be “mechanically applied” (see para 3 of the judgment), it was held that it was. The reasons of the court in Berkeley No 2 (in particular, as set out in paragraphs 48 – 50) generally seem to me to be directly in point here and to be contrary to Mr Wolfe’s submissions. “48. Miss Sharpston submits that the Directive does not permit the setting of thresholds purely by reference to size. We agree that Article 4(3) and Annex III and the case law to which we have referred make it clear that the Member States in deciding upon the criteria will need to take a variety of matters into consideration other than size. However that does not have as its logical consequence that the criteria themselves must refer to each or all of those matters. We reject the submission to the contrary.49. The Directive clearly envisages, as the case law confirms, that Member States can establish criteria in advance and that cases on one side of the line do not need to be subject to an EIA assessment. It is manifest that one can always conceive of possible situations in which by an accumulation of notional sites and notional developments a devastating effect on the environment could be produced. Member States are under a duty to consider whether the criteria which they establish will ensure that, before consent is given, projects likely to have significant effects on the environment (Article 2 with my emphasis) will be subjected to an EIA. They must take into account possible cumulative effects and the criteria in Annex III.

50. There is no reason to suppose that the Secretaries of State have failed to do this. Nor is the end result on its face irrational or very surprising. The position is quite different from that which appertained in the Ireland case. There it was manifest from the material before the Court that the transposition was not Community Law compliant. In the present case the material produced by Lady Berkeley does not have that effect and we do not lengthen this judgment by setting it all out”. Berkeley (No 2), I might add, had involved a challenge raised to an urban development project which did not exceed the specified threshold. It is to be observed that, though the prospect of cumulation had in that case been raised and emphasised by counsel for the Claimant (see para 40), it was found that it could not be held that the development in question might be an EIA development: see para 44.

[66]In this context, as the Court of Appeal in Berkeley (No 2) noted, it is always possible to conceive of a situation where an accumulation of notional developments could produce a devastating effect on the environment. But it is also to be noted that under the Amended Directive (by Article 4.3) Member States are required to take the relevant selection criteria in Annex III into account. Such criteria include cumulation with other projects. In fixing the criteria and thresholds set out in Schedule 2, the Secretary of State took the selection criteria contained in Annex III to the Directive into account: see the recital to the 1999 Regulations. Thus the thresholds were chosen with the risk of cumulation having first been taken into account. Mr Wolfe, as a further aspect of his argument, sought to say that the 1999 Regulations had not properly implemented the Directive: specifically, in setting a 1 hectare threshold for “roads”. In my view, the wording of the 1999 Regulations belie that submission. Indeed, as I see it, that submission is contrary to the actual decision of the Court of Appeal in Berkeley (No 2). As to that, Mr Wolfe submitted that that case involved an urban development project, not a road. But in my view that is a distinction without a difference: for in that case, as noted by Schiemann LJ, no sufficient material had been produced to show that the transposition (by means of the 1999 Regulations) was not compliant with the Directive. In the present case, likewise, the Claimant has produced no such material. Accordingly it can in this case be shortly stated (as it was by Schiemann LJ in Berkeley (No 2) that the position is quite different to that which appertained in the Ireland case.

[67]In addition it is, I think, important not to overlook some other factors, quite apart from the factor relating to cumulative impact which the Secretary of State took into account before fixing the thresholds and criteria in Schedule 2, which support the view that the 1999 Regulations comply with the Directive. They are these:67.1 First, even where thresholds are not exceeded, EIA will always be required for development in sensitive areas (as defined).

67.2 Second, even where thresholds are not exceeded, there is the right of a person to request the Secretary of State to make a direction under Regulation 4 (8).

67.3 Third, where there is evidence of the possibility of a wider project it is likely that that will feature in the deliberations of the planning authority on purely planning grounds: as in fact happened in the present case.

67.4 Fourth, as pointed out by Mr Harwood, an asserted fear of small projects having an adverse cumulative effect has to be looked at practically (and as a matter of real risk), not as a matter of theory. That accords with the legal authorities and also with practical reality: for example, for a developer or developers in a context such as the present deliberately to split applications to avoid EIA (and it may be queried how many would even wish to do that) would involve significant practical burdens, in terms of complexity, expense and uncertainty of outcome: quite apart from the requirements of any applicable Strategic Environmental Assessment.

[68]There is yet further authority which tells against Mr Wolfe’s submissions. It is to be found in the decision of Simon Brown J in R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1991] JPL 39, a case involving, among other things, a consideration of the 1988 Regulations (which had, of course, been implemented in the light of the original Directive). As part of his broad conclusions in that case, Simon Brown J said this (in the transcript of the report provided to me: cf p.41 of the JPL report) as proposition number 3:

“The question whether the development is of a category described in either schedule must be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question whether it "would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location" should, in my judgment, be answered rather differently. The proposal should not then be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development. This approach appears to me appropriate on the language of the regulations, the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, developers could otherwise defeat the object of the regulations by piecemeal development proposals.”

[69]All counsel before me were agreed that Simon Brown J’s comments on that he called “the further question” were correct. Indeed, as I see it not only do they accord with the comments of the Advocate-General in the Naturschutz case (see para71) but also their correctness has since in effect been confirmed, under the 1999 Regulations, by the provisions of Regulation 4 (5): which requires a planning authority, at the stage of considering whether a Schedule 2 development is an EIA development, to have regard to the relevant selection criteria set out in Schedule 3 – and those, of course, include consideration of cumulative development. Mr Phillpot and Mr Harwood submitted that Simon Brown J’s comments on the first question were also correct, and plainly so. Mr Wolfe on the other hand – who acknowledged that at first blush those comments were (in his phrase) “dead against me” – submitted that Swale was distinguishable, as being a case on the 1988 Regulations under which no thresholds had been laid down in the relevant Schedule. He also pointed out – strictly, I think, correctly – that those observations of Simon Brown J in para 3 of his general conclusions in Swale were obiter.

[70]In my view, Simon Brown J’s observations are as much applicable to the 1999 Regulations as to the 1988 Regulations (which earlier Regulations, it is to be noted, were made to implement a Directive which had in principle sanctioned the introduction of thresholds): indeed those observations fit entirely with the actual wording of the subsequent 1999 Regulations. I do not think there is any meaningful distinction to be drawn by virtue of those observations being made in the context of a case involving the 1988 Regulations. Still less do I think that that first sentence somehow lends support to Mr Wolfe’s arguments: which he asserted that, on analysis, they did.

[71]I am not strictly bound by those observations of Simon Brown J, although on any view they are highly persuasive. As I gather, they have been frequently cited in this field and in the intervening years have been applied by planning authorities: in fact, the decision was cited by the Council here in its response to the letter before action. In such circumstances, I am not sure that it would be right for me not to follow those observations, even if I had doubts as to their correctness. But as it is I agree with those observations.

[72]In the result, I do not feel able to accede to Mr Wolfe’s arguments. In my judgment, the decision of the Council that this was not an EIA development, by reference to the planning application of 13th August 2004, was in accordance with the wording of the 1999 Regulations, naturally and fairly read; was in accordance with the wording of and purpose behind the Directive (as amended); and was in accordance with authority, both of the European Court and of the English Courts.

Reference to European Court of Justice

[73]Mr Wolfe submitted that, were I to be against him on his principal point (as, in the event, I am) I should exercise my discretion to direct a reference to the European Court of Justice. I decline to do so. Overall, I entertain no real doubts as to the community law issues in this case. That in itself would disincline me to direct a reference. But my view on that is in any case reinforced by three further considerations on the facts of this particular matter. First, on the basis that Phase 2 does indeed take place then there will in any case be EIA which would include Phase 1 also; second, no question of a deliberate device or ploy to circumvent the EIA regime arises here; third, in practice there has in fact here been quite a detailed assessment (albeit not by way of EIA) of the environmental and ecological issues relating to Phase 1.

Conclusion

[74]The Claim fails and is dismissed.