Mortell, R (on the application of) v Oldham Metropolitan Borough [2007] EWHC 1526 (Admin)

Case No CO/10733/2066[2007] EWHC 1526 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 30th March 2007
Strand
London WC2
B E F O R E:
SIR MICHAEL HARRISON
Between
THE QUEEN ON THE APPLICATION OF MORTELLClaimant-v-
Between
OLDHAM METROPOLITAN BOROUGHDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R McCracken QC (instructed by Public Interest Lawyers, Birmingham) appeared for ClaimantMr S Sauvain QC and Ms M Pratley (instructed by Oldham Metropolitan Borough Council Legal Department) appeared for Defendant
J U D G M E N T

SIR MICHAEL HARRISON: Introduction This is an application for judicial review to quash three outline planning permissions granted by the defendant, Oldham Metropolitan Borough Council, for development described as "residential and associated facilities" in three areas known as the Derker Station site, the London Road site and the Abbotsford Road site, all in the Derker area of Oldham.

[2]The proposals arise out of the Oldham and Rochdale Housing Market Renewal Pathfinder Initiative which itself arises out of the Housing Market Renewal Initiative introduced by the Government to tackle the issue of failing housing markets in certain parts of the country. It has led to Pathfinder Partnerships and its aim is to regenerate housing areas by, amongst other things, the replacement of obsolete housing with modern sustainable accommodation by demolition and new building and by refurbishment. A Masterplan was drawn up in 2003 for the Oldham and Rochdale area and in 2006 the Oldham and Rochdale Housing Market Renewal Pathfinder Initiative was awarded a grant which, amongst other things, enabled implementation of the Derker programme of interventions.[3]Two of the three sites comprised in the Derker area are predominantly residential and the third consists partly of commercial buildings and partly of housing. The claimant lives on the Abbotsford Road site which is predominantly residential.[4]In 2005 the defendant made a compulsory purchase order ("CPO") to acquire land and property within the intervention area. The claimant is amongst the objectors to the CPO. A public inquiry into the CPO opened on 6th February 2007. Following completion of the evidence, the inquiry adjourned until 3rd April 2007 for final submissions.[5]Primarily in order to support the CPO's proposals, the defendant applied to itself for outline planning permission for the development of each of the three sites. On 12th May 2006 the defendant adopted a screening opinion in respect of each of the planning applications that an environmental impact assessment (an "EIA") was not required. On 30th June 2006 the defendant granted itself three outline planning permissions, one for each of the three sites, subject to a number of conditions, one of which reserved siting, design and external appearance, means of access and landscaping for subsequent approval.[6]It is those planning permissions which are challenged in these proceedings, although the main focus of the challenge is directed to the screening opinions which preceded them. 1999 Regulations[7]The need for the screening opinions arose as a result of the Environmental Impact Assessment Directive 85/337/EEC ("the Directive") and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the Regulations").[8]It is only necessary at this stage to refer to the Regulations. The position, put shortly, is that, by virtue of the Directive and the Regulations, where a proposed development falls within one of the descriptions contained in Schedule 2 to the Regulations and the application is not accompanied by an EIA, the local planning authority must adopt a "screening opinion" determining whether the proposed development is an EIA development, which is defined as a development likely to have significant effects on the environment by virtue of factors such as its nature, size or location. If the local planning authority determine that it is an EIA development, planning permission may not be granted unless an EIA has been provided to, and the environmental information considered by, the local planning authority. If the local planning authority determines that it is not an EIA development, the application may be determined by the authority.[9]In this case, the defendant correctly concluded in respect of each planning application that the development was a Schedule 2 development because it was an urban development project with an area exceeding 0.5 hectare. In fact, the Derker Station site area was 2.1 hectares, the London Road site area was 4.61 hectares, and the Abbotsford Road site area was 1.38 hectares.[10]In deciding whether a Schedule 2 development is an EIA development, that is to say whether it is likely to have significant effects on the environment by virtue of factors such as its nature, size, or location, Regulation 4(5) provides as follows:
"Where a local planning authority ... has to decide under these Regulations whether Schedule 2 development is EIA development the authority ... shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
[11]The selection criteria specified in paragraphs 1 to 3 of Schedule 3 refer respectively to the characteristics of the development, the location of the development, and the characteristics of the potential impact. Paragraph 1 provides that the characteristics of the development must be considered having regard, in particular, to a number of matters. The matters relied upon by the claimant are the cumulation with other development, the use of natural resources and the production of waste and pollution. Paragraph 2, dealing with the location of the development, specifies a number of matters which have to be considered in relation to the environmental sensitivity of geographical areas likely to be affected by the development. Paragraph 3, dealing with the characteristics of the potential impact, provides that the potential significant effects of the development must be considered having regard to a number of matters. The matter relied upon by the claimant is the complexity of the impact.[12]Schedule 4 to the Regulations relates to information to be included in an environmental statement. It does not provide selection criteria for a screening opinion, but reliance is placed by the claimant on the inclusion in that Schedule of matters relating to the construction and operational phases, architectural heritage and indirect, cumulative and short-term effects of the development. Circular 2/99[13]Government guidance on the implementation of the Regulations is contained in Circular 2/99. In dealing with general considerations relating to the need for an EIA for Schedule 2 development, paragraph 33 of the Circular refers to the selection criteria in Schedule 3 as identifying three broad criteria, namely the characteristics of the development (such as its size, use of natural resources and quantities of pollution and waste generated), the environmental sensitivity of the site and the characteristics of the potential impact (such as its magnitude and duration). The Secretary of State's view is that, in general, an EIA will be needed for Schedule 2 developments in three main types of cases, namely for major developments of more than local importance, for developments proposed for particularly sensitive or vulnerable locations, and for developments with unusually complex and potentially hazardous environmental effects. Those three types of development are then dealt with in greater detail in the ensuing paragraphs, but paragraph 34 states that the number of cases of such developments will be a very small proportion of the total number of Schedule 2 developments.[14]Finally, so far as the Circular is concerned, paragraphs A18 and A19 of Annex A to the Circular deal with urban development projects. Paragraph A18 states that an 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, the types of impact are of a markedly different nature or there is a high level of contamination. Paragraph A19 states that development of sites not previously intensively developed are more likely to require an EIA if, inter alia, the site area is more than 5 hectares or there would be significant urbanising effects in a previously non-urbanised area such as a new development of more than 1,000 dwellings. Planning applications[15]Although the planning applications in this case were outline applications, they were accompanied by supporting statements, including design and access statements. The statements set out fully the policy background, the emergence of the Pathfinder programme, and the design guides and standards which the Pathfinder body would be seeking to achieve on the sites, including the Building for Life standard and the EcoHomes standards. The statements indicated in respect of each application the possible density, scale, mix and number of units, and an illustrative layout plan accompanied each application. Screening opinions[16]The applications were made on 25th April 2006 and the defendant's screening opinions were dated 12th May 2006. With the exception of one paragraph, the screening opinions were almost identical in each case. They consisted of three parts. The first part referred to the relevant provisions of Circular 2/99. The second part was headed "Background to Screening Opinion". It stated that the question that must be asked is, "Would this particular development be likely to have significant effects on the environment?" It then summarised the relevant provisions of Schedule 3 to the Regulations in the same way as does the Circular, and it summarised the Secretary of State's view of the three main types of cases where an EIA is needed as set out in the Circular. The final paragraph of that part of the screening opinion stated that the fundamental test to be applied in each case was whether the particular type of development and its specific impacts are likely, in that particular location, to result in significant effects on the environment.[17]The third part of the screening opinions was headed "Screening Opinion". In each case, it purported to describe the site in the context of the wider area, although it did not do so in a very satisfactory manner. In two of the cases it referred to the wider area as the application site and it referred to the application site itself as the red line application site, giving the relevant area in each case. I was told that in each case the description of the wider area equated to the relevant Masterplan area. In the third case, relating to the Derker Station site, the screening opinion did not refer to a red line application site but instead referred to an application site covering a 2.1 hectare area with a description which equated to the Masterplan area. That was plainly wrong, but it is nevertheless tolerably clear what areas the screening opinions were intended to relate to.[18]The subsequent parts of the screening opinions, which were identical in each case, stated as follows:
"The proposal forms part of a Housing Market Renewal pathfinder programme for the area, which aims to regenerate this part of the Borough, facilitating the development of new modern housing, which meets the needs and aspirations of local people. The application has been submitted in outline form only and seeks to establish the principle of new residential development within the area. "
In considering whether an EIA is required, the proposed development must be compared with the existing or former uses operating from the site. As outlined above, the site is in a commercial/ industrial area. The application seeks consent to redevelop the area for residential purposes. It is not considered that a proposed residential development (subject to the scale, massing, siting, number of units of the development, as determined through a reserved matters application) would be on a significantly greater scale than this existing use, or that the types of impact will be any greater than the existing use such as to warrant the submission of an EIA as required by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999."[19]I should just mention that the first sentence of the second paragraph is different in the other screening opinions because it describes the other relevant sites. Report to Planning Committee[20]The next document to which I should refer is the planning officer's report to the Planning Committee. In the same way as with the screening opinions, there was a separate report in each case which, with the exception of the description of the relevant site, was in almost identical form. It referred to the Housing Market Renewal Initiative, the Pathfinder Partnerships and the Masterplan for the Derker area. It described the material accompanying the proposal and then stated:
"No details of the siting, size, scale, massing, and the design of any new development has been provided as part of this application, and would be considered as part of any applications for reserved matters. However, the design and access statement does provide an overview of the aims and objectives of the HMR programme in terms of achieving successful housing market renewal."
[21]The report also summarised the screening opinion and it dealt with a number of different matters, including density and mix, design principles, heritage issues and renewable energy issues. In each case, the report recommended the grant of planning permission. Planning permissions[22]The planning permissions had a number of identical conditions attached to them. Condition 2 was the standard reserved matters condition requiring approval of details of siting, design and external appearance, means of access and landscaping before the commencement of development. Condition 3 prohibited any development, including demolition, until a scheme for the retention and/or demolition of all buildings had been approved. Conditions 4 and 5 prohibited development until a site investigation into, respectively, landfill gas risk and the extent of land contamination had been carried out and a consultant's report with recommended remedial measures had been approved by the defendant. Finally, condition 8 prohibited development until a scheme to provide a minimum of 10 per cent of the predicted energy requirements of the development on site from renewable sources had been approved by the defendant in order to conform to policy NR3.3 of the Replacement Unitary Development Plan.[23]Both the screening opinions and the reports to the Planning Committee were the responsibility of Mr Willerton, Head of Planning Services, who has made a witness statement in this case to which reference was made during the hearing. Claimant's case[24]The claimant's case fell into two parts. The first part related to an alleged failure to take various matters into consideration. The second part related to the timing of a decision on the need for an EIA in the light of the nature of the bare outline planning permission and the effect of the House of Lords decision in the case of R v London Borough of Bromley, ex parte Barker [2006] UKHL 52.

(i) Failure to take into account relevant considerations

[25]I start by dealing with the first part of the claimant's case. There were four matters which the claimant alleged were not taken into account when the screening opinion was adopted: first, the cumulative effects of each of the developments, second the energy, natural resource and pollution implications of the operational development necessary for the construction of the project, third the contaminated nature of some of the land and, fourth, the architectural heritage of the existing buildings. It was also alleged that there was a failure to take into account two of those matters at the planning permission stage, namely the cumulative effect and the effects of the construction stage.[26]There was an issue between the parties as to whether, if there were a failure to take matters into consideration, the screening opinion was a discrete decision which should be quashed or whether it was only necessary to quash the planning permission on the ground of an invalid screening opinion and/or the lack of an EIA. It was, however, agreed that the issue did not take the matter any further because ultimately it was the validity of the planning permission which was at stake and it was agreed that the planning permission should be quashed if the screening opinion were found to be invalid.[27]I turn then to consider the alleged failure to take matters into consideration. Mr McCracken QC, for the claimant, drew attention to Mr Willerton's witness statement in which he said that the screening opinions were written in the defendant's standard format which seeks rationally and logically to take the reader through the process and the relevant considerations. The point made was that, if the screening opinions were intended to take the reader through the relevant considerations, it showed that there was a failure to include the four matters alleged to be relevant considerations.

(a) cumulative effect

[28]The first matter alleged not to have been taken into consideration was the cumulative effect of each development when combined together and with the other development proposed for the Derker project under the Masterplan. Emphasis was laid on the three areas together because the immediate intention to demolish related to those areas. The short point made on behalf of the claimant was that there was absolutely nothing in the screening opinions, or subsequently in the reports to the Planning Committee, to suggest that the cumulative impact had been taken into account. It was suggested that, if it had been intended to consider the cumulative effect, the screening opinion in each case would have quantified the total of the three sites rather than just give the area of each individual site.[29]Mr Sauvain QC, on behalf of the defendant, accepted that there was no express reference to cumulative impact in the screening opinions but he contended that it was clear from each screening opinion that the defendant had in mind that there were other developments involved and that they were all part of the Masterplan. The amount of information required at the screening stage is necessarily of a broader nature than that required at the EIA stage. It was said that it was clear from the screening opinions that it was a comparison between what existed and what was proposed, taking into account the Secretary of State's guidance, that led to the conclusion that an EIA was not required. It was submitted that, if that point was valid in relation to an individual site, there was no reason why it should be different for the three sites put together. There was nothing to suggest that the cumulative effect would be any different from the aggregate of the individual effects comparing what was there and what was proposed. Mr McCracken, on the other hand, contended that an accumulation of effects may have a magnitude and significance which the individual components do not have and that that was why the Regulations referred to cumulative effect.[30]So far as the planning permission stage is concerned, Mr Sauvain submitted that it was clear from the committee report that there were three sets of proposals under consideration, that they were part of the Masterplan and that the screening opinion had already been issued so that, if the screening opinion were valid, there would be no need to consider cumulative impact any further at the planning stage.[31]The cumulative impact with other development is specified in paragraph 1(b) of Schedule 3 to the Regulations as one of the matters to which regard should be had when considering the characteristics of the development, and Regulation 4(5) provides that the authority shall take into account such of the selection criteria in Schedule 3 as are relevant to the development.[32]In my view, where three separate areas are being considered together for development, all within the Derker area, the question of cumulative impact is, prima facie, a relevant consideration. It is plain from the screening opinions, and from other documents, that the defendant was well aware that there were three areas for development being considered and that they formed part of the Masterplan. They were therefore aware of the wider picture but there was no consideration of the cumulative effect of the developments. On the defendant's rather simplistic approach in the last paragraph of the screening opinions comparing the end uses of existing and proposed development, it simply did not arise, but I would accept Mr McCracken's point that an accumulation of effects may have a magnitude and significance which the individual components do not have. Whether they do in this case, and whether the cumulative effect is likely to have a significant effect on the environment is, of course, a matter for the defendant. I am conscious that Mr Willerton has said in his witness statement that, if the screening opinions were written to address cumulative effect, there would be no difference to the conclusions and I take that into account, but, for present purposes, my conclusion is that the defendant has not taken cumulative effect into consideration, either in the screening opinions or at the planning permission stage.

(b) construction effects

[33]The second matter which the claimant alleged the defendant did not take into account, either in the screening opinions or at the planning permission stage, was the energy, natural resources and pollution implications of the operational development necessary for the construction of the project. Although other matters such as construction waste were mentioned, the main matter referred to in argument on this part of the case was the energy balance involving the loss of embodied energy in the existing buildings to be demolished and the energy requirements of the new buildings.[34]The claimant's case was that the screening opinions had concentrated solely on a comparison of the end uses and had failed to consider the consequences of the construction phase involving large-scale demolition, resulting in loss of embodied energy and waste, which is a complex matter.[35]The defendant's case on this issue was in two parts. Firstly, it was accepted that there was no express reference in the screening opinions to the energy balance but it was said that there was no evidence that it was likely to have a significant effect on the environment. Indeed, it was suggested that such evidence as there was indicated that, over time, there would be an overall improvement in energy consumption. Every development has an effect on energy consumption and natural resources and there was nothing unusual about this development. The defendant had had regard to the correct question and to the selection criteria in Schedule 3. Alternatively, the defendant relied on the evidence of Mr Willerton that the exact amount of energy reduction that can be achieved will depend on the precise build quality, design and materials used which could only properly be assessed at the reserved matters stage. Mr McCracken, on the other hand, described Mr Willerton's evidence as classic ex post facto reasoning with nothing in the screening opinions to show that it was his reason for not requiring an EIA. He described the proposals as a highly unusual development involving large-scale demolition of houses and their replacement by other houses.[36]So far as the planning permission stage is concerned, the defendant made similar points to those relating to the screening opinions and referred to condition 8 of the planning permission, requiring 10 per cent of energy requirements to be provided on site from renewable sources, as showing that renewable energy had been taken into account. Mr McCracken contended that implementation of condition 8 could have significant visual, noise or smell effects which had not been considered.[37]The construction phase is referred to in Schedule 4 in the Regulations rather than in Schedule 3, but it was accepted by Mr Sauvain that it was also relevant at the screening opinion stage because several of the matters referred to in paragraph 1 of Schedule 3 can arise during the construction stage.[38]In my view, it is plain that the defendant did not take into account matters arising from the construction phase such as energy consumption, natural resources and waste. It is clear from the last paragraph of the screening opinions that the defendant's consideration was confined to the simplistic comparison of the existing and proposed end uses. It is right to say that the claimant has not produced any evidence of likely significant environmental effects caused by those factors, but they are nevertheless matters which the defendant is required by Regulation 4(5) to take into account if they are relevant to the development. Whilst it is an exaggeration to describe any of those developments as highly unusual, it is fair to say that they involve a significant amount of demolition. The supporting statements accompanying the planning applications stated that the interventions would clear substantial areas of small terraced housing, and the reports to the Planning Committee referred to significant demolition and redevelopment. In those circumstances, the effect on energy, natural resources and waste as a result of demolition during the construction phase are plainly relevant.[39]A substantial amount of technical material on the issue of the energy balance was included in the judicial review papers and I was referred to a new document on that topic that had been produced during the CPO inquiry. However, it is not for the court to decide those issues. They are matters for the defendant to consider. On the evidence produced so far, it may be that the defendant will conclude that those matters are not likely to have a significant effect on the environment, but the position so far as is that they have not been considered by the defendant who is under a duty under Regulation 4(5) to consider them.[40]The alternative submission, based on Mr Willerton's evidence, that the exact amount of energy reduction achievable can only be determined at the reserved matters stage, is a submission that is more conveniently dealt with under the second part of the claimant's case.[41]I reach much the same conclusion in relation to the planning permission stage as for the screening opinions, save that the issue of renewable energy was considered in respect of the requirement in condition 8 to provide 10 per cent of energy requirements from on site renewable sources. However, that only arose from consideration of the policy requirement of policy NR3.3 of the Replacement Unitary Development Plan and did not involve other consideration of energy issues.

(c) contamination

[42]The third matter which the claimant alleged that the defendant did not take into account at the screening opinion stage was the contaminated nature of some of the land in the Derker area likely to be affected by the project.[43]Again, there is no mention in the screening opinion of contamination having been considered at that stage. Pollution is one of the matters mentioned in paragraph 1 of Schedule 3 which the authority has to take into account if it is relevant. It is relevant in this case because conditions were attached to the planning permissions requiring site investigations and consultants' reports and recommendations relating to landfill gas risk and land contamination. The reason for that is explained in Mr Willerton's witness statement. The three application sites are within 250 metres of a closed landfill site which could have been the reservoir for a former mill which was filled in with unknown materials following closure of the mill. Possible contamination is therefore plainly relevant but there is no mention of it being considered at the screening opinion stage.[44]The defendant's case is that the conditions on the planning permission were simply a precautionary measure and that a full site investigation was not possible at the screening opinion stage. It is said that all the land is not within the defendant's ownership so that the appropriate time for a full investigation would be when a developer is in control of the site, thereby avoiding opening up land that might be contaminated or the subject of landfill gas until the works are actually required.[45]The claimant's reply is that the fact that a full site investigation is not possible goes to the scope of the investigation and does not mean that there should be no investigation.[46]I can well understand the impossibility of a full investigation at the screening opinion stage but I am not persuaded that that means that it was not a matter which could have been considered at all at that stage. The fact that it was not mentioned at all in the screening opinions suggests to me that it was not considered at that stage. It may be that the degree of knowledge available at that stage was insufficient to enable a meaningful conclusion as to whether there were likely to be significant environment effects, but without the matter having been dealt with at all it simply is not possible to know. The only meaningful conclusion that can be reached is that it was not considered at that stage. The further consideration of this aspect at the reserved matters stage is a matter which falls for consideration in the second part of the claimant's case.

(d) architectural heritage

[47]The fourth matter which the claimant alleged the defendant did not take into account at the screening opinion stage was the architectural heritage of the built environment that may be destroyed. Although architectural heritage is a matter specified in Schedule 4 rather than in Schedule 3, there was no dispute that it was a relevant consideration at the screening opinion stage.[48]Once again, it is accepted by the defendant that there is no express mention of architectural heritage issues in the screening opinions. It is, however, clear from the supporting statements accompanying the planning applications and from the reports to the Planning Committee that the HMR Pathfinder had commissioned consultants to carry out a heritage study to look at the first intervention areas which includes the Derker area. Consequently, condition 3 was attached to the planning permissions prohibiting any development, including demolition, until a scheme for the retention and/or demolition of all buildings had been approved by the defendant.[49]The claimant's case is that the need for a consultant's report is evidence that there could be potential harm and that the consultant's report should have been received before deciding whether significant environmental effects were likely.[50]The defendant's case is that there is no evidence that there are likely to be significant environmental effects caused by the effect of demolition on the architectural heritage and that condition 3 attached to the planning permissions will ensure that there will be full consideration and assessment of any proposal to demolish.[51]I was told that the CPO inquiry date was put back to ensure that the consultant's report was available at that stage. The difficulty so far as the screening opinion stage is concerned is that the screening opinion should be given within three weeks of the planning application so that the report would not be available within that period. Nevertheless, these proposals do involve a significant amount of demolition which in turn could have a significant effect on the architectural heritage and, although condition 3 was later imposed at the planning permission stage, it was not a matter apparently considered at the screening opinion stage. I should mention that the heritage issue was raised for the first time at the hearing so that there was no reference to it in Mr Willerton's witness statement, but there was no objection by Mr Sauvain to it being dealt with in that way. Conclusion on first part of claimant's case[52]I have therefore come to the conclusion on the first part of the case that none of the four matters alleged -- cumulative effect, the construction phase, contamination or architectural heritage -- were taken into consideration by the defendant for the purposes of the screening opinions. Mr Willerton said in his witness statement that the screening opinions sought to take the reader through the relevant considerations but none of those matters are mentioned in the screening opinions. In my view, they should have been taken into consideration for the reasons that I have given. Simply to compare the existing and proposed end uses was inadequate. Whether consideration of those matters by the defendant would have led to a conclusion that the developments, either individually or cumulatively, were likely to have significant effects on the environment is difficult to say. I can understand the defendant's reliance on paragraphs A18 and A19 of Annex A to Circular 2/99, but Regulation 4(5) nevertheless requires the defendant to take into account such of the selection criteria as are relevant to the development. It may be that the defendant will still reach the same conclusion after it has taken the relevant considerations into account, but I cannot say for certain. It would be wrong for the Court to second-guess the defendant or to usurp its function. In my view, the planning permission should be quashed on the ground that the screening opinions were unlawful due to a failure to take into account relevant considerations. (ii) Effect of case of Barker[53]That brings me to the second part of the claimant's case, namely the timing of a decision on the need for an EIA in the light of the nature of a bare outline planning permission and the effect of the House of Lords decision in Barker [2006] UKHL 52. The parties, however, agreed that it was not necessary for me to decide this part of the case if I were to decide that the planning permissions ought to be quashed on account of failure to take into account relevant considerations. As I have so decided, it is therefore not necessary for me to decide the second part of the case. I do not therefore set out the Directive, the relevant case law and the submissions made on that aspect of the case. However, as the defendant will have to consider the grant of fresh planning permissions, it may be helpful if I were to indicate that, if they do decide to grant fresh planning permissions, they should consider the imposition of conditions in order to ensure that the development is kept within the parameters of what was applied for and assessed at the time of the screening opinions. In my view, the need to assess the likely effects on the environment at the earliest possible opportunity and the need to impose conditions to ensure that the development remains within the scope of what was applied for and assessed still remains the law in the post-Barker situation. It is only where the likely effects are not identifiable or have been overlooked or not anticipated at the outline stage that they can be taken into consideration at the reserved matters stage.[54]If some of the environmental effects relating to the energy issue are not capable of identification at the outline stage, then it may be permissible to consider them at the reserved matters stage, provided that conditions are imposed on the outline permission to ensure that what is then assessed at the reserved matters stage is the development for which outline permission was granted. The same applies to the effects of contamination, which is the other matter mentioned earlier as having an aspect to consider in the second part of the claimant's case. The consultant's report on heritage issues is, I understand, now available so that its conclusion on likely environmental effects relating to the architectural heritage issue can now be considered by the defendant when adopting a screening opinion. Overall conclusion[55]None of those issues were even considered by the defendant at the screening opinion stage, but it is the failure of the defendant to grapple with the four issues raised in the first part of this case that forms the basis of my decision, which is that the screening opinions were invalid and that the planning permissions ought therefore to be quashed.[56]MR MCCRACKEN: I am obliged, my Lord, and I would ask that the claimant should have his costs from the defendant, to be assessed if not agreed. This was a matter that was always listed for more than one day and therefore neither party thought it appropriate to submit a schedule of costs before the hearing.

SIR MICHAEL HARRISON: Yes, I see. Ms Pratley, can you resist that?

[58]MS PRATLEY: I am not in a position to resist that.

SIR MICHAEL HARRISON: Thank you very much. Then I will make an order that the defendant pays the claimant's cost, such costs to be assessed if not agreed.

[60]MR MCCRACKEN: May I, both on behalf of Mr Sauvain, I am sure, and myself, thank your Lordship for expediting your Lordship's consideration and delivering judgment this week because we both appreciate the ability to be able to go back to the inspector next week and let him know where we are.

SIR MICHAEL HARRISON: Yes. Thank you very much.

Cited in 1 later judgment