Baker, R (on the application of) v Bath and North East Somerset Council [2009] EWHC 595 (Admin)

[2009] EWHC 595 (Admin)

Case No CO/397/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 19th February 2009

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF BAKERClaimant

-v-

Between

BATH AND NORTH EAST SOMERSET COUNCILDefendant

HINTON ORGANICS (WESSEX) LTD

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

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

(Official Shorthand Writers to the Court)

Mr J Hyam (instructed by Richard Baxter Environmental Pulbic Law) appeared for Claimant

Mr J Maurici (instructed by Head of Legal Services, Bath & NE Somerset Council) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE COLLINS: This claim, which was lodged as long ago as 17 January 2007, seeks to quash three planning permissions granted by the defendant on 8 November 2006. The permissions related to the use by a company called Hinton Organics (Wessex) Limited of two sites near Bristol for the purpose of waste management.

[2]The company was originally granted permission in 1999, although I think the actual use did not start until 2000, to deal with what was known as green waste, that is to say waste emanating from gardens in the form of grass cuttings, leaves and so on. The process to be undertaken was composting of that waste and that process gave off from time to time unpleasant odours. That led to a considerable number of complaints by those who have been affected by those odours and indeed the claimant is a representative of those who live near enough to be affected.

[3]There have been a series of concerns by those responsible for considering the waste management process, that there have been failures to comply with the conditions which have been attached to the permissions and that the company has shown itself apparently unable to comply with those conditions which seek to ensure that the adverse effect of their composting are kept to a minimum.

[4]However, that is not strictly or directly material to the issue that I have to decide, although it is a relevant concern because one of the three permissions relates to a site some 2 kilometres away from the site which was originally granted permission, a site known as Lime Kiln, where it was proposed that part of the process be carried out. I mean by this that the idea is that in order to enable the company to increase its output at the original site, the compost, or rather the waste which is being composted, can be removed to the Lime Kiln site after a number of weeks and the balance of the process will be carried out there. That is the idea, as I understand it. Of course that would involve transporting the partly composted waste from one site to the other and will also produce at the Lime Kiln site, which is a site which is less than half a hectare in area, the possibility, it is said, of adverse effects on the environment. It is to be noted that a report to the Council of 15 December 2005 from an environmental health officer indicated concerns about odour nuisance. What it said was:

"Experience has shown that the operation of a similar facility nearby at Charlton Fields [that is the one which was granted permission back in 1999] has given rise to persistent odour complaints resulting in formal action under the Environmental Protection Act 1990 for Statutory Nuisance from odour. I have no doubt that if this application is approved that complaints will be received and similar action will be inevitable. The existing method of maturation and conditioning of organic waste to produce 'compost' at the Charlton Field Site has been shown to be inadequate in preventing offensive odours as a result of anaerobic decomposition. It appears from the method described in the Risk Assessment supplied with the application that a similar technique is proposed on this site for turning windrows. In my view this does not represent good practice and has already been demonstrated complaints of odour nuisance are likely to result. I have also have concerns at the potential for increased odour complaints caused by the transportation of partly rotting material from Charlton Fields to this site at Lime Kiln Farm."

[5]The claim form as amended sets out the background. I need deal with it only very briefly because it is accepted that this case turns on whether the relevant regulations have properly applied the Directive which concerns the practice to be adopted in considering the possible effect on the environment of developments which require planning permission.

[6]The effect of the permissions in relation to Charlton Fields is clearly to intensify the use. The site in question was, at the time of the original grant of permission, 2.1 hectares in area. It was believed that it did not then require any consideration of an environmental impact assessment under the Directive and the regulations that were then in force. That is not accepted by the claimant and there is a potential issue whether that is indeed correct. However, for reasons which will become apparent, it is not necessary for me to decide that issue because, whether or not the original permission was granted without proper consideration of the environmental impact, it is now too late to challenge that permission and it is, whether or not properly granted, one which can now not be impugned.

[7]It is important to note that the planning permissions in question include a development which involves the addition of paper or cardboard to the waste to be dealt with on the site. It also includes an increase in the number of lorry movements, although it does not increase the overall limit of 800 tons, which can be dealt with on site. It seems to me clear that the claimant's contention that this will result in intensification of the use on the site is correct and, accordingly, the concern will be, if one looks at the effect of the new permissions on what is there at the moment, that the site will be more intensively used for the purpose for which it has been granted permission.

[8]The claim came before me on 8 December 2008. After hearing argument, it seemed to me that the case turned on whether the relevant regulations had properly implemented the Directive in question, that is to say the Directive on the assessment of effects of certain public and private projects on the environment, 85/337/EC (as amended).

[9]The Secretary of State had not been involved, but clearly was to be regarded as an interested party, because if I were persuaded that the claimant's case was correct and that the regulations did not properly transpose the provisions of the Directive, it would be necessary for me to decide a matter which was clearly one in which the Secretary of State had a real interest, namely the validity of the particular regulation. In those circumstances, the matter was adjourned for such service. The Secretary of State was invited to consider whether to make written or oral representations, and if so, the Secretary of State would be joined as an interested party. The decision was that oral representations should be made and Mr Maurici attended on behalf of the Secretary of State and I heard the matter afresh yesterday.

[10]It is common ground that if the permissions did fall within the scope of the Directive, consideration should have been given to whether there was a need for an environmental impact assessment, and so at this stage a screening opinion would have been required. This did not happen because the regulations did not require, on their face, that that should happen, and so the planning authority (the defendant) did not regard it as necessary to go along that route. The starting point, therefore, is the Directive as amended. Article 2.1 provides:

"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 a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4."

It is important to bear in mind that projects which are likely to have significant effects on the environment have to be made subject to such an assessment.

[11]The method of identifying which projects should fall within those requirements is set out in Article 4. The Directive contains two relevant annexes. Annex I identifies projects which must or always will be made subject to an environmental impact assessment and annex 2 contains those which may be subject to such an assessment. The Member States have a discretion as to how they identify such projects.

[12]Article 4(2) thus provides:

"2. Subject to Article 2(3),[which enables exemptions in exceptional cases, which are not applicable so far as we are concerned] 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."

Annex I contains a list of projects which must be subjected to an environmental impact assessment and, as one would expect, contains a list of relatively major projects which are clearly by their very nature likely to have an effect on the environment.

[13]So far as waste is concerned, Schedule 1 contains in paragraphs 9 and 10 incineration or chemical treatment or land fill of hazardous waste and the same for non hazardous waste with a capacity exceeding 100 pounds a day. So it is obvious that the project in question when the permission was originally granted and, indeed, the functions present do not fall within Annex I.

[14]Annex II covers, so far as waste is concerned, all installations for the disposal of waste, which are not included in Annex I. That is 11(b) of the schedule. However, as I say, that was subject to limitations in the Directive as originally enacted and Annex II there referred to installations for the disposal of industrial and domestic waste other than covered in Annex I. The argument here was that the waste in question was not to be regarded as either industrial or domestic waste. As I say, that is in issue. Reference was made to definitions of domestic waste for the purpose of control of pollution because, of course, the Annex was transposed by regulations in this country. However, I do not mean, as I have said, to go into or reach a decision on that particular issue.

[15]Each of the annexes contains a provision covering modifications or changes or extensions to projects. Originally in the Directive as adopted in 1985, the only reference to modifications was in what was then paragraph 12 of Annex II, which provided:

"Modifications to development projects included in Annex I and projects in Annex 1 undertaken exclusively or mainly from a development and testing of new method or products and not used for more than one year."

[16]In Kraaijevel BV v A Body in South Holland [1997] All ER EC 134, it was decided that modifications to Annex II projects were also within Annex II although were not expressly mentioned in the Annex, because the purpose of the Directive would be undermined if modifications to development projects were so construed as to enable certain works to escape the requirement of an impact assessment although by reason of their nature, size or location such works were likely to have significant affects on the environment. This led to an amendment of the Directive which then specifically incorporated, as paragraph 13 to Annex II a provision dealing with the modification of an existing project. Paragraph 13 now reads:

"Any change or extension of projects listed in Annex I or Annex II, already authorized, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex 1); -Projects in Annex I, undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than two years."

The latter was the original provision in the Directive.

[17]In Annex I, there is now paragraph 22 which provides:

"Any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex."

[18]The significant amendments were contained in Directive 2003/35. That Directive was concerned with implementing the Arhus Convention. Its objective, as set out in Article 1 was to:

"...contribute to the implementation of the obligation arising under the Arhus Convention, in particular by: (a) providing for public participation in respect of drawing up of certain plans and programmes relating to the environment; (b) improving the public participation and providing for provisions on access to justice within Council Directives 85/337/ECC and 91/61/EC."

[19]There are two material amendments for our purposes, or perhaps three. They are contained in Article 3, paragraphs 7, 8 and 9. Paragraph 7 inserts Article 10a into the Directive 85/327, which so far as material provides:

"Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned: (a) having a sufficient interest, or alternatively (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provision of this Directive."

The final paragraph of the Article provides as follows:

"In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures."

The article provides that there can be a possibility of a preliminary review procedure before an administrative authority before the need to go to any court or tribunal.

[20]Paragraph 8 adds to Annex I. Paragraph 22 which I have already read, and at the end of the first indent in Annex II in paragraph 13, it added the words:

"(change or extension not included in Annex I)"

. It is to be noted that it was a matter relied on by Mr Maurici, that paragraph 22 in Annex I makes it clear that the focus is on the change or extension in itself, and only if in itself it falls within Schedule 1, because it crosses whatever threshold is required, that it should require an independent environmental impact assessment.

[21]Those words "of limitation" are not, on the face of it, included within paragraph 13 of Annex II. Mr Maurici has submitted that the words "Any change or extension to projects already authorised which may have significant adverse affects on the environment" indicate that one should focus on the change or extension rather than on the effect of the change or extension, and it would be, he submits, inconsistent and strange if the approach required in Annex I was not reflected in that required for Annex II. There is, in my view, a simple answer to that submission, and indeed the language used and the means of change are in fact against Mr Maurici's submission.

[22]It is not surprising that it is considered unnecessary to have an automatic need for an environmental impact assessment where there is a modification of an existing Annex I project because if it falls within Annex II, which it clearly will, it will be possible, indeed necessary, to consider the overall effect of the modification and to decide whether because of that there is a need for environmental impact assessment. An existing Annex 1 development will have had an environmental impact assessment and so indeed will not be necessary unless there is some additional impact. It may well be that modifications within themselves will really be such as to require an independent assessment, but it is clearly desirable that that should take place, if they are of sufficient magnitude or likely adverse effect that such would be required. But it is equally desirable, in my view, that the effect of those could be considered and that is what Annex II is dealing with at paragraph 13. It is very difficult to divorce changes and extensions from the effect of those changes or extensions, and for reasons which will become apparent, it would, in my judgment, be contrary to the whole approach that has been adopted by the European Court of Justice to the construction of the Directive and, indeed, to the purpose of the Directive if the overall effect of the changes or extensions or modifications was not able to be taken into account.

[23]There is a direction given to Member States as to the approach they should adopt to identify the relevant projects which fall within Annex II. They have to apply the criteria set out in Annex III and it is important to note that in one of those criteria is described as the cumulation with other projects. That, again, shows that the approach designed by the Directive is that there should not be consideration of projects in isolation. It is necessary to see how they inter-react with other projects and to consider the overall effect. That that is the position in relation to projects which are apparently unrelated in the sense that they are not involved with precisely the same original project, makes it all the more clear, in my view, that it must apply to projects which involve the modification whether by extension or other changes to existing projects.

[24]The relevant regulations which have implemented the Directives are the Town and Country Planning (Environmental Impact Assessment (England and Wales) Regulations 1999 (1999 No 293). They have been amended most recently by Regulations of 2008 and I have them before me in their consolidated and updated form.

[25]In the definition provisions in Regulation 1, EIA development is defined to mean a "... development which is either-(a) Schedule 1 development; or

(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location." It is obvious from that that Schedules 1 and 2 are intended to contain the provisions which are in the Annex I, and Annex II to the Directive.

[26]Schedule 2 development is defined as meaning:

"... 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..."

There is a list of sensitive areas, including such things as SSSIs, national parks, world heritage site properties and so on. One can understand why location in such areas would be likely to require consideration of whether there was a need for environmental impact assessment. Historically that aspect was included because of a case involving Ireland which had sought to transpose the Directive by reference only to the area or the extent of projects and the court said that that was insufficient because it did not reflect the likely effects of even smaller developments where they took place in a sensitive area.

[27]Regulation 4 deals with what is called "screening", that is a system whereby if there is a crossing of the threshold in Schedule 2, the initial consideration has to be by way of a screening opinion, whether an environmental impact assessment is in fact required in the circumstances of an individual case:

"4(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that the development is EIA development. (2) The events referred to in paragraph (1) are- (a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or (b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development."

Regulation 4(8) is of importance, indeed a central part of Mr Maurici's submissions. It provides that:

"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."

That enables the Secretary of State, notwithstanding that a threshold may not be crossed or even, if crossed, it may not appear that a development is EIA development, to take the view that that is not correct in the circumstances and so to require that an environmental impact assessment be provided.

[28]Regulation 5 provides that:

"A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion."

It may pursue that request to the Secretary of State if necessary. It does not provide that a member of the public they make such request, although clearly a member of the public can raise the issue and can make an application to the Secretary of State if aware that such a process is available.

[29]I should just refer briefly to regulation 20 since it is said there has been a breach of that. Regulation 20 provides:

"Where particulars of a planning application [or of a subsequent application] are placed on Part 1 of the register, the relevant planning authority shall take steps to secure that there is also placed on that Part a copy of any relevant- (a) screening opinion; (b) screening direction..."

That, it is said, was not complied with. (b) was not, and the reason why it was not was that it was believed that the regulations did not require that any screening opinion or assessment was needed.

[30]I go, therefore, to the schedule to the regulations. Schedule 1, paragraph 21 which deals with changes or extensions reads:

"[Any change to or extension of development listed in this Schedule where such a change or extension meets the thresholds, if any, or description of development set out in this Schedule.]"

That, of course, follows directly the equivalent provision in Annex I of the direction as amended.

[31]Schedule 2 contains two columns. Column 1 is a description of the development and column 2 is described as "applicable thresholds and criteria". So far as waste is concerned, it falls in 11(b). Column 1 includes installations for the disposal of waste unless included in Schedule 1, and Column 2 provides:

"(i) The disposal is by incineration; or (ii) the area of the development exceeds 0.5 of a hectare; or (iii) the installation is to be sited within 100 metres of any controlled waters."

[32]Paragraph 13 deals with changes or extensions.

(a) provides:

"Any change to or extension of development of a description listed in Schedule 1 (other than a change or extension falling within paragraph 21 of that Schedule) or in paragraphs 1 to 12 of Column 1 of this table, where that development is already authorised, executed or in the process of being executed, and the change or extension may have significant adverse affects on the environment..."

In column 2, which contains the criteria, there is, as far as material this:

"(i) In relation to development of a description mentioned in Column 1 of this table, the thresholds and criteria in the corresponding part of Column 2 of this table applied to the change or extension (and not to the development as changed or extended)."

Subparapgraph (ii) contains the same provision relating to a Schedule 1 development. it is the words in parenthesis which it is submitted are not properly within the Schedule because they apply a limitation, which is inconsistent with and contrary to the purpose of, indeed contrary to the language of the Directive and, accordingly, said that I must apply the law as provided for by the Directive in so far as the regulation was not implemented properly.

[33]The correct approach of a court in this country, where there are assertions that a Directive has not been properly transposed into domestic law, has been recently considered and set out by the Grand Chamber in Pfeiffer and Ors v Deutsches Rotes Kreuz and Ors

[2005] IRLR 137

[2005] ICR 1307

. The case involved protection of the safety and health of workers. But general observations were made as to the approach that should be adopted when considering Directives which had a direct effect as this Directive has. At paragraph 103 this is said:

"In that regard, it is clear from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly..."

In paragraph 113, the court said:

"Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC..."

There are references to various cases including what I suppose is often regarded as the seminal case in this area, Marleasing.

[34]Paragraph 114:

"The requirement for national law to be interpreted in conformity with Community law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it... 115. Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive. ... ... In this instance, the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that the Directive... Accordingly, it must be concluded that, when hearing a case between individuals, a national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive..."

[35]This court clearly is able to disapply a particular provision of the regulations if that provision is inconsistent with a Directive which it purports to implement and that is what I am asked to do in the circumstances of this case.

[36]Mr Maurici relied on three main points. First, Article 2(1) which he said was consistent with the view that it was concerned primarily with projects which therefore on the face of things did not extend to modification of projects. Secondly, the regulations imposed a very low threshold and, thirdly, the presence of Article 4(8) provided the necessary protection so that there could be raised in any case the question whether consideration would be given to whether environmental impact assessment was, indeed, meaningful.

[37]The problem which Mr Maurici recognised, is that there is no requirement for interested members of the public to be informed of the possibility of applying to the Secretary of State under Article 4(8). Equally, there is no obligation on the local planning authority if such issues are raised, and it takes the view that the criteria in column 2 of Schedule 2 are not in any individual case met, nonetheless can refer to the Secretary of State. As I have said, there is no obligation on them to do so.

[38]It seems to me that there is a flaw in Mr Maurici's argument based on the existence of Article 4(8) inasmuch as there does not appear to be compliance with Article 10A in ensuring that there is information given to a member of the public to enable an application to be made to the Secretary of State. That must involve an administrative direction and equally must mean that the reference to the Secretary of State is made before any planning permission is granted, because once planning permission is granted by the authority, it becomes necessary to go to law, and there may be difficulties, but apart from anything else expense, involved for members of the public to do that. Accordingly, the absence of any system to draw attention to the possibility of reference to the Secretary of State is a flaw in the whole and itself creates a difficulty in Mr Maurici's path.

[39]So far as the approach to modifications is concerned, it is important to bear in mind that there does exist guidance in the form of circular 02/99 on the manner in which environmental impact assessments should be considered. Paragraph 31 of the guidance provides:

"Development falling below the thresholds or meeting none of the criteria in the second column of the table does not require EIA. However, there may be circumstances in which such small developments might give rise to significant environmental effects. In those exceptional cases the Secretary of State can use his powers under regulation 4(8)... to direct that EIA is required."

Any comment on that is "yes", but there must be a means whereby the matter gets before the Secretary of State.

[40]Paragraph 46 of the circular provides, as far as material:

"However, in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or approved development. There are occasions where the existence of other development may be particularly relevant in determining whether significant effects are likely, or even where more than one application for development should be considered together to determine whether or not EIA is required."

Then under the heading "Changes or extensions to existing or approved development" this is said:

"Development which comprises a change or extension requires EIA only if the change or extension is likely to have significant environmental effects. This should be considered in the 'light of the general guidance of this Circular and the indicative thresholds in Annex A. However, the significance of any effects must be considered in the context of the existing development. For example, even a small extension to an airport runway might have the effect of allowing larger aircraft to land. Thus significantly increasing the level of noise and emissions. In some cases, repeated small extensions may be made to developments. Quantified thresholds cannot easily deal with this kind of 'incremental' development. In such instances, it should be borne in mind that the thresholds in Annex A are indicative only. An expansion of the same size as a previous expansion will not automatically lead to the same determination on the need for EIA because the environment may have altered since the question was last addressed."

The reference to Annex A sets out the indicative thresholds criteria for identification of Schedule 2 which comes from the regulations.

[41]It is, I think, apparent that paragraph 46 is on its face inconsistent with the provision in column 2 of number 13 in Schedule 2, that it should be looked at in isolation. It is, and for sensible reasons because it accords with the obvious purpose of the Directive, that it is necessary to consider the effect of the amendment, the change, on the development as a whole. That is the true purpose, is supported by two recent cases in the European Court of Justice to which my attention has been drawn. The first is Abraham v Wallonne C-2/07, a decision of 28 February 2008. That case involved the extension of an airport near Liège, the effect of which would be to increase traffic use so thatthere was likely to be an increase of noise from the restructuring of a former military airport used by air freight companies. The court said in paragraph 27:

"Finally, the national court should be reminded that the objective of the legislation cannot be circumvented by the splitting of projects and that failure to take account of their cumulative effect must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of Directive 85/337."

[42]The third question was whether competent authorities had an obligation to take account of the projected increase and activity at the airport in determining whether a project covered by .12 of Annex II, subject to an assessment of its impact on the environment. In fact then the 12 is what is now 13 in slightly different form, but it dealt with modifications and changes.

[43]In 42 and 43 the court said this:

"As stated in paragraph 32 of this judgment, the Court has frequently pointed out that the scope of Directive 85/337 is wide and its purpose very broad. In addition, although the second subparagraph of Article 4(2) of Directive 85/337 confers on Member States a measure of discretion to specify certain types of projects which will be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. In that regard, Directive 85/337 seeks an overall assessment of the environmental impact of projects or of their modification. 43 It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works."

[44]It seems to me that that is clearly not only consistent with but applies the approach that it is necessary to look at the effect of any modification or modifications on the project, or on the development, and to see whether the whole, as modified, has or is likely to have other significant effects which need to be taken into account and may require an environmental impact assessment, albeit they do not fall themselves within the criteria which have been adopted by the Member State.

[45]That approach has been supported by a more recent case, Ecologistas en Accion-Coda v Ayuntamiento de Madrid [2008] C-142/07, judgment delivered on 25 July 2008. That was a case involving the construction of a ring road round Madrid and there had been a number of different applications or development proposals which split the project into, as it were, small amounts. Paragraph 44 of the judgment in that case said this:

"Lastly, as the Court has already noted with regard to Directive 85/227, the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1)... 46. Therefore, the answer to the first three questions must be that the amended directive must be interpreted as meaning that it provides for environmental impact assessment of refurbishment and improvement projects for urban roads, either where they are projects covered by [relevant points in the] Annex I to the directive, or where they are projects covered by the first ... indent of point 13 thereof, which are likely, by virtue of their nature, size or location and, if appropriate, having regard to their interaction with other projects, to have significant effects on the environment."

The obvious interaction is the effect on the existing project which is to be modified. It seems to me that it is plain beyond any peradventure that it is not appropriate, in the light of the jurisprudence of the court and the purpose behind the Directive, to regard only the modification itself and not the effect on the development as a whole of any such modification to it.

[46]Mr Maurici in developing his submissions that the procedure under the regulation, in particular 4(8) provided the necessary safeguards placed considerable reliance on the decision of the Court of Appeal in Berkeley v The Secretary of State for Environment, Transport and Regions [2001] 3 Crim LR 11. That is known as Berkeley (No 2). That was an attempt to quash a permission for the construction of a block of flats, in fact the development of the Fulham football ground, because of an alleged failure to take properly into account the possible cumulative effect of that and other developments which were going to take place. One of the matters raised, the important matter raised, was the assertion that there was an obligation on the local planning authority where an issue such as this was raised before it to refer under regulation 4(8) to the Secretary of State.

[47]The court considered the approach which should be applied and referred to what I have also mentioned before, the Ireland case, that is a failure to include in implementing the Directive, reference to matters other than merely the size. It cited extensively from the decision of the European Court in that case, that is the European Commission v Ireland and in particular paragraph 73 of that decision, which appears within paragraph 24 of the judgment of Schiemann LJ was is giving the judgment of the court:

"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."

At paragraph 39 Schiemann LJ stated that from the consideration of the regulations as a whole:

"A number of matters are clear from a consideration of the Regulations as a whole. 1. The planning authority, the Secretary of State and the inspector are not empowered to grant planning permission for an EIA application unless the environmental impact assessment procedures have been gone through... 2. An EIA application is one for planning permission for EIA development. 3. Development will be EIA development. (a) if the development falls into Schedule 1. or (b) (i) the development falls within column 1 of schedule 2 and. (ii) it is likely to have significant effects on the environment and either (a) any part of it is to be carried out in a sensitive area as defined or (ß) the threshold in column 2 is crossed; or (c) the Secretary of State has made a direction under regulation 4(8)."

The method by which the decision as to whether or not it was an EIA application would be reached was either if:

"(a) the applicant or appellant submits a statement to that effect; (b) the planning authority adopts an opinion to that effect which is not displaced on appeal; (c) the Secretary of State makes a screening direction..."

In paragraph 43, dealing with the 4(8) point Schiemann LJ said this:

"We further accept that under the Regulations a situation can arise where someone makes to a planning authority or to an inspector empowered to grant planning permission on appeal a plausible submission to the effect that the proposed development is one in respect of which the Secretary of State might, if the matter had been before him, have made a direction under regulation 4(8). We accept that, under the Regulations as they are naturally construed the planning authority and the inspector are in such circumstances empowered to grant planning permission without an EIA first having been carried out. Like the Judge we conclude that, on the assumption that the Regulations are Community Law compliant, the Inspector in the present case could not have concluded, at the time he was considering the matter, that this development might be EIA development – it did not fall into Schedule 1, it was not in a sensitive area as defined, the threshold was not crossed and the Secretary of State had not made a direction under regulation 4(8). This conclusion as such is not challenged by Miss Sharpston. Miss Sharpston's written submissions could be read as suggesting that since Regulation 4 (8) envisaged the possibility of a case by case examination therefore the Secretary of State was obliged to make an examination in every case as to whether the application should be subjected to EIA procedures and therefore the Inspector was always bound to refer this question to the Secretary of State. We reject this submission as manifestly unsustainable and indeed Miss Sharpston modified it in her oral submission. In those she submitted that, bearing in mind the Community Law background, Regulations 9(2) ought to be construed so as to impose upon an inspector a duty to refer to the Secretary of State every application for planning permission in respect of which a plausible submission has been made that the Secretary of State might make a Regulation 4(8) direction."

That the court rejected.

[48]It is to be noted that that judgment was given before the amendments, in particular the addition of Article 10A was provided for by the amended Directive 2003/35. However, that would not, on its face, have affected any obligation to refer to the Secretary of State, but it does mean that there is an obligation to make it known to members of the public concerned with an application for planning permission, which they say would be likely to have adverse effects on the environment and effect them, as is the position in this case, to know that they have the right to make an application to the Secretary of State, pursuant to regulation 4(8) and that that should mean that the decision by the local planning authority to grant permission should await any decision by the Secretary of State.

[49]But I do not see anything in the Berkeley case which aids Mr Maurici in the conclusion that he wishes me to apply, namely that there is a sufficient procedure set out in the regulations to protect the individual having regard, as he puts it, specifically to the low threshold in column 2 of Schedule 2. He also makes the point that it would mean that every modification, however small, would mean that there was a need at the very least to consider screening and that this would be contrary to one of the purposes, which was to avoid unnecessary expense in and prolongation of the process of considering applications. But the other side of the coin is clearly a situation where there may be a significant change which clearly should, if the matter is looked at as a whole, require consideration as to whether an environmental impact assessment is needed.

[50]This case is an example because, whether rightly or wrongly, there has never been any proper consideration as to whether it is indeed an EIA development. The fact that there have been numerous complaints of the odours that have emanated from the process shows that it is certainly capable of having adverse effects on the environment. Indeed it is suggested that it was likely to do so and had this been considered under the 1999 regulations, quite clearly the threshold would have been crossed because the original site was 2.1 hectares which, is more than 0.5 of a hectare. So we have a situation where there has not been consideration of environmental impact.

[51]True that the original permission cannot now be set aside but since intensification will undoubtedly result, it is desirable that proper consideration is given as to whether the changes do mean that there is a likelihood of damage to the environment.

[52]As far as the Lime Kiln application is concerned, as I have already said, there is an issue as to whether that should be regarded as cumulative in the sense that it goes along with the other project, or whether in itself, albeit smaller than the threshold because it covers an area less than half an hectare, there is a likelihood of environmental damage. I have already referred to the views of the environmental health officer and it seems to me that there should have been, at the very least, consideration as to whether, notwithstanding the threshold had not been crossed, it was, indeed, an EIA development, whether or not it was to be regarded as cumulative. That consideration was not given because there was nothing conveyed to the claimant that there was a possibility of applying to the Secretary of State under 4(8). But it is accepted that if I come to the conclusion that the regulations do not properly implement the Directive, all three permissions must be set aside.

[53]For reasons that I have given, I have come to the conclusion that the regulations do not in the passage in parenthesis in column 2 under (i, (or indeed (ii)) relating to number 13, properly implement the Directive. This is because they seek to limit consideration for the purposes of screening to consideration the change or extension on its own. That is, in my view, contrary to the purpose of and the language of the Directive and the approach that should be adopted as set out by the court.

[54]I did raise with counsel the question whether they wish to submit that this was a matter in respect of which a reference should be made to the European Court. No counsel was keen on that approach and I do not consider it necessary, because I am concerned with domestic law, whether domestic law properly applies to matters in respect of which there is no issue in community law. For the reasons that I have given, as I say, I am satisfied it does not.

[55]Accordingly, the order that I make is that all three permissions must be quashed.

[56]MR LANGHAM: My Lord, I am not going to raise the substance of any orders, but there are three points on which I would seek your Lordship's assistance. The first is very small point. When your Lordship checks the transcript, I wonder that you would care to note that the original charted permission was granted in 1999, not in 1997.

MR JUSTICE COLLINS: Sorry.

[58]MR LANGHAM: The second point is that if your Lordship made it clear yesterday that the consequential orders would be dealt with by written submission.

[59]MR JUSTICE COLLINS: Shall I say that I would, subject to any submissions that have been made by counsel, propose that or indicate that the likely result must be a quashing of the three.

[60]MR LANGHAM: Yes. The only point I was going to raise was I am sure it would assist Messrs Maurici -- it does not affect me very much, to have a timetable running from the date of the transcript.

[61]MR JUSTICE COLLINS: Yes, certainly. I think I indicated that yesterday, did I not?

[62]MR LANGHAM: I did not get a note of what the deadlines were. I would suggest three days from the transcript (Pause).

MR JUSTICE COLLINS: Probably by the end of next week.

[64]MR LANGHAM: Right.

MR JUSTICE COLLINS: Whenever it is any time will run from the receipt of the transcript.

[66]MR LANGHAM: That was my next point. That would deal with, amongst other things, rule 52(4) and the time limit for appealing. What I had in mind was the exchange of written representations in relation to costs. There is one particular point that I am going to come on to, and I was going to suggest something like three, let us say, days from the transcript.

[67]MR JUSTICE COLLINS: You can have seven days, I would have thought, from receipt of the transcript to make any written submissions that you would wish to make upon costs, on leave to appeal -- actually on leave to appeal, assuming, as I suspect, the Secretary of State might want leave to appeal, it would be very difficult and I think you probably recognise this, to refuse leave to appeal, because it is obviously a decision which has quite a significant knock-on effect.

[68]MR STOOKES: I would say that the judgment you have given actually you would -- I would be surprised if you did refuse -- sorry, if you granted leave to appeal now, I thought it was rather...

[69]MR JUSTICE COLLINS: You pause, I will wait and see what application -- all I am saying is at the moment I think it would be difficult to refuse leave to appeal if leave to appeal is requested.

[70]MR STOOKES: Certainly, yes, the subject the representations are made.

MR JUSTICE COLLINS: Certainly, they may decide that I am right and it is not worth appealing.

[72]MR LANGHAM: I do not want to make this unduly complicated, but if one just said seven days from the transcript, it may be that one of the parties will leave it until seven days to make representations and the other party will not have an opportunity to respond.

[73]MR JUSTICE COLLINS: Leave it to me to make that it is dealt with fairly. What I am saying is that any submissions as to what should happen should be before me within seven days after the receipt by you all of the transcript and then time will run from the decision that I reach.

[74]MR LANGHAM: Very good, my Lord.

[75]The third point that I want to raise is this. Plainly I and Messrs Maurici would seek to agree as much of an order as we can.

MR JUSTICE COLLINS: Of course.

[77]MR LANGHAM: Yes. Now, quashing planning permissions is quite straightforward, but it is certainly going to occur to more than one of us that there needs to be a declaration in relation to what the law is not.

[78]MR JUSTICE COLLINS: I see that possibility. On one view the judgment speaks for itself, but I am quite content to consider any declaration and that is something that you ...

[79]MR LANGHAM: There is one particular point I think it is worth raising with your Lordship now, and that is that your Lordship made it quite clear on a number of occasions during the course of the judgment, not surprisingly given the subject matter of the case, that the offending words were those in parenthesis in column 13-column 2 paragraph 1 where exactly the same words appeared in 13 column 2 paragraph 2 dealing with amendment to Schedule 1.

MR JUSTICE COLLINS: I was not directly concerned but I think the same principle must apply.

[81]MR LANGHAM: Any declaration will make that clear.

MR JUSTICE COLLINS: That must follow, I agree.

[83]MR LANGHAM: Thank you my Lord.

[84]MR JUSTICE COLLINS: As far as costs are concerned, that can be arranged. Prima facie you ought to be entitled to your costs, but there may be an argument about failure, I suspect, to serve the Secretary of State.

[85]MR LANGHAM: There is going to be another point as well my Lord.

[86]MR JUSTICE COLLINS: I will wait. All right, since I can only apologise that your clients -- I do not know whether it is the court's fault or whose fault -- that it has taken such a long time to get this case on.

[87]MR STOOKES: There was a backlog last year and I think that is where it got clogged up.

[88]My Lord, to be absolutely clear, the permissions are quashed as from now?

[89]MR JUSTICE COLLINS: The permissions are quashed. That must run from today. As I understand it, two of them at least were retrospective.

[90]MR LANGHAM: Yes.

[91]MR STOOKES: Yes, certainly one of them was.

[92]MR JUSTICE COLLINS: One of the contentions is that the company has been misbehaving, if I may put it that way, in as much as they have not been following what they ought to have been following in dealing with this and indeed you have had to enforce certain steps.

[93]MR STOOKES: The agency has, my Lord.

[94]MR JUSTICE COLLINS: And the answer is yes, they do not now have the permissions that they have. What flows from that will be, obviously, not a matter directed at me.

[95]MR STOOKES: Thank you my Lord.

[96]MR JUSTICE COLLINS: Right. Thank you all.

Cited in 10 later judgments

and 1 more case

Baker, R (on the application of) v Bath and North East Somerset Council 2009