Mageean, R (on the application of) v Secretary of State for Communities & Local Government [2010] EWHC 2652 (Admin)

Case No CO/12524/2009[2010] EWHC 2652 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 28 July 2010
Strand
London WC2A 2LL
B e f o r e:
HHJ ROBINSON
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF MAGEEANClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR D KOLINSKY (instructed by RICHARD BUXTON) appeared for ClaimantMR J LITTON QC (instructed by THE TREASURY SOLICITOR) appeared for DefendantMR J NEILL (instructed by HAMMONDS) appeared for Interested Party
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application pursuant to section 288 of the Town and Country Planning Act 1990 (the 1990 Act) to quash a decision of the first defendant given by an inspector in a decision letter dated 15 September 2009. The inspector allowed an appeal by the third defendant against a refusal of planning permission by the second defendant, and granted planning permission for one 1.3 mw wind turbine generator with a hub height of 50 metres and a blade tip height of 81 metres plus ancillary development on land at Highdown, Redland, Pensilber, Liskeard, Cornwall. The claimant is a local resident who lives not for from the site of the proposed wind turbine. In summary, the challenge relates to procedural inadequacies in the first defendant's approach to whether or not the proposed development was EIA development for the purposes of the Town and Country Planning Environmental Impact Assessment, England and Wales Regulations 1999 ("the EIA Regulations"). The version which applies to this case is that in force prior to the coming in to force of the Town and Country Planning Environmental Impact Assessment Amendment, England Regulations 2008, on 1 September 2008 (see Regulation 3.1 as amended). In practice these amendments are immaterial to the issues in this case.[2]At the beginning of the hearing there was a procedural skirmish about the claimant's current grounds of challenge and the very late service of evidence on behalf of the first defendant. The defendant submitted that the claimant had changed its grounds in the skeleton argument, despite having been specifically asked in earlier correspondence whether there would be any amendments in the grounds to which the response was no. However, the defendants were content for me to consider the grounds now put forward and reach a view about their merits before deciding whether I would allow them to be taken. The claimant did not object as such to the late service of the witness statements of the Inspector, dated 1 July 2010. However, he did take issue with whether the first defendant was entitled to rely on it to plug what were described as gaps in the first defendant's decision making processes. This is a matter to which I will return later. The facts[3]Proposals for a wind turbine at Highdown have been under consideration for some time. In 2003 the third defendant invited the second defendant's predecessor, Caradon District Council to give a screening opinion as to whether the proposed wind turbine would be EIA development. The significance of this is that, if it is EIA development, then the EIA Regulations require an environmental impact assessment to be carried out prior to the grant of planning permission. The proposed development fell within paragraph 3(a) of schedule 2 to the EIA Regulations, and exceeded the applicable threshold in column 2 of the schedule. Accordingly, whether it would be EIA development depended on whether it would be: "Development likely to have significant effects on the environment by virtue of factors such as nature, size or location" (Regulation 2).[4]The screening opinion given by the district council, dated 23 May 2003, was that the proposed wind turbine would be EIA development:
"It is considered by the local planning authority that the turbine could, by means of its height, position and location, have a significant impact upon the landscape to the North and East, much of which is covered by AONB designations."
AONB stands for Area of Outstanding Natural Beauty, a national designation of landscape importance. One AONB lies 4km to the West of the site, another 6km to the East.[5]The third defendant then went to the first defendant, as she was entitled to do, and asked for a screening direction that the proposed wind turbine would not be EIA development. On 24 July 2003 the first defendant issued a screening direction to that effect, stating simply that:
"In the opinion of the Secretary of State, and having taken into account the selection criteria in schedule 3 to the 1999 Regulations, the proposal would not be likely to have significant effects on the environment by virtue of factors such as its nature, size and location"
. Some criticism is made by the claimant of the wording of the direction, but it is not suggested that it is invalid or inapplicable for that reason.[6]In the event, no planning application was made by the third defendant until December 2007. It was accompanied by a document called "Environmental Report" which, although not an environmental statement as would be required if the proposal were EIA development, sought to evaluate the impact of the development on various aspects of the environment, including the benefits of renewable energy. The application was also accompanied by a landscape and visual impact assessment and noise assessment from independent consultants. The application attracted considerable local opposition, including from the claimant. The community had formed an organisation called "Green Caradon against Turbines" or "Green CATS" to oppose the development. Its objections focussed on impact on the landscape and the effect of noise on residential amenity. Green CATS instructed its own independent landscape and noise consultants who produced reports which were relied upon by the objectors.[7]Of particular importance for present purposes, one of Green CATS' objections was to the impact it was said the proposed wind turbine would have on the Cornwall and West Devon mining landscape World Heritage Site, which had been designated in 2006. Two areas of the World Heritage Site are relevant, area 9, Caradon Hill, lies 1.2km to the West of the proposed wind turbine; and area 10, Kit Hill and Tamar Valley, lies 3.7km to the East. It is to be noted that the World Heritage Site was designated after the first defendant's screening direction that the proposed wind turbine was not EIA development. The importance of protecting World Heritage Sites and their settings is described in circular 7 of 2009 which refers, in paragraph 8, to their "outstanding universal value" and "importance as a key material consideration" when taking decisions as to whether planning permission should be granted.[8]In its report to the Planning Committee, the Planning Officer recommended that planning permission be granted. The report stated that there would be some visual impact on the AONB and World Heritage Site, but that the bodies responsible for the protection of these areas had not objected to the development. As to the more local landscape, the report stated that there would be some harmful visual impact in some locations but that this would not be an unacceptable loss of landscape visual amenity contrary to local policies. The report concluded:
"After careful consideration of all the information, including the many comments from residents, it is considered that, having regard to national and local policy for renewable energy development, and on the basis that the wind turbine would not unacceptably harm the landscape character and visual appearance of the area as a whole, a recommendation of approval is warranted"
. Members, however, disagreed and planning permission was refused for the reason that: "The proposed development would be detrimental to the appearance and character of the landscape and, as such, is contrary to development plan policies which seek to protect the landscape, including the World Heritage Site".[9]The third defendant appealed against that refusal and the appeal was dealt with by the planning inspectorate rather than the first defendant personally. Green CATS asked for the appeal to be dealt with at an inquiry, but the Inspectorate decided it should be dealt with by written representations. With hindsight that was unfortunate. The problems which have given rise to this challenge might have been spotted and dealt with if there had been an inquiry. Written representations were made in the appeal on behalf Green CATS, the second and third defendants. The Inspector made a site visit and, in her decision letter, identified two main issues: "•The effect of the proposed development on the landscape character and visual appearance of the surrounding area; and• Whether harm from the proposal, including any to the character and appearance to the area and any other harm, would be outweighed by the need for increased renewable energy generation" (paragraph 4).[10]Her conclusions on the first issue are as follows:"20. The site is sufficiently distant from the AONBs and World Heritage Sites, that there will be no detrimental impact on these nationally and internationally important designated areas. The site would appear in some long distance views from east and west, but it would appear as a small feature and would not cause harm to the generally wide and panoramic outlook. The site is located within attractive pastoral countryside, but AGLV status should not in itself be a reason to withhold planning permission. Because of the character of the landscape, views of the site from closer public vantage points would often be interrupted by the rise and fall of the land and the presence of hedges and woodland.21. Whilst the area of rural land east of Pensilva, including Charaton, Tremeer and Fillamore, would be most affected by the proposal, the impact on public views would again be intermittent. The turbine, by virtue of its scale and in the context of the surrounding rural area, would be detrimental to private views from a small number of residential gardens and properties. I conclude that the proposed development would have a detrimental impact on the landscape character and visual appearance of the area immediately west and north west of the site, though the extent and severity of the impact would be limited. The proposal would be consistent with the thrust of PPS7 and PPS22 and the emerging RSS, but would conflict with some saved policies of the local plan".[11]In paragraphs 22 to 25, the Inspector considered other possible harm and concluded that any impact by virtue of noise or shadow flicker, ecological impact and impact on television reception could be addressed through suitable planning conditions. In the light of her conclusions on harm, the Inspector said:
"26. The UK response to issues of climate change means that increasing amounts of electricity have to be supplied over time from renewable sources. A target of 20% for the UK has been set for 2020, and this target is likely to be raised. I am advised that the Cornwall structure plan target of 93 mw of installed capacity by 2010 is unlikely to be met. The capacity of the current proposal is 1.3 mw and it is estimated that it could meet the energy needs of 550 households, based on local average annual consumption levels. Whilst Green CATS for the local community questions of the benefits of the scheme in terms of meeting demand for energy and reducing CO2 emissions, PPS22 paragraph 18 and the local policy is supportive of both small scale renewable energy projects and wind turbines in general. The drive for changes to increase energy efficiency and reduce usage wherever possible should not count against the need for an increased supply in energy from renewable sources. I consider that the contribution which this proposal would make to the greater use of renewable energy and to meeting county and national targets, is a significant factor in its favour. 27. Set against this is the adverse impact which the proposal would have on visual amenity, particularly on the fairly localised area immediately west and north west of the appeal site. It seems to me that the major impact would be on private views from Fillamore and some other properties. I have had regard to paragraph 40 of PPS1 which confirms that the planning system operates in the public interest. In this case, I consider that, although there would be some harm to private amenity through loss of views towards open countryside, this is outweighed by the generally low level of harm in terms of landscape character and visual intrusion, and to public interest. I am satisfied that other harm, such as raised noise levels, would either be minor or could be mitigated adequately through suitable planning conditions. 28. This leads me to conclude that the total harm from the proposal, including that to the character and appearance of the area, is not of great magnitude and would be outweighed by the contribution to the increased generation of renewable energy. I have therefore decided to grant planning permission"
. The Inspector went on to discuss conditions and a planning obligation in paragraphs 29 and 30. She granted planning permission subject to 22 conditions set out in a schedule.[12]During the course of these proceedings, in response to a request for information as to what consideration was given to screening the development, the first defendant first stated:
"There is no contemporaneous record of the Inspector's consideration of the screening direction" (see letter dated 16 December 2009 from the Treasury Solicitor). Then, on 24 February 2010, the first defendant disclosed documents internal to the Inspectorate described at "
Pin's desk instructions in relation to EIA" and the appeal check list specific to this appeal. The appeal check list contains a question, 1B, which asks "is EIA required?" with an answer "yes/no" to be completed with a date. Question 1B also directs the person answering the question the indicate under which schedule of the EIA Regulations the development falls and, if schedule 2, whether the development is in a sensitive area or the applicable threshold is exceeded. None of question 1B has been answered, although many other questions on the check list have been answered.[13]The desk instructions refer to the importance of considering EIA and state that: "All appeals should be seen to have been screened ... Either the case officer or team leader, after having checked the appeal, must answer question 1B of the check list. Failure to complete the check list could lead to a court of law finding that we have failed to consider the need for EIA! ... Although at the application stage the LPA was responsible for carrying out the screening process, this does not remove Pin's responsibility as the competent authority at appeal stage to make a fresh assessment of every appeal we receive".[14]In respect of all appeals, the instructions state that the case officer or team leader must answer question 1B of the check list and, if a proposal is for schedule 2 development and exceeds the applicable threshold, then "complete an EIA pro forma, pass the file to the team leader so that it can be forwarded to the HEO on the OST".[15]Under the heading "if an environmental statement is not present but a screening opinion or direction is present" the desk instructions identify what action should be taken depending on the view formed:
"The case officer should complete the EIA pro forma and pass the file to the team leader so that it can be forwarded to the HEO who, if necessary, will pass to the file to the OST to see if he/she agrees with the screening opinion. If OST ... (ii) disagrees with the screening direction (a reversal of the screening direction will only be contemplated when new information affecting the requirement for EIA comes to hand) the government office/PCCD/PD will be consulted."
[16]In response to a question from me as to what is an EIA pro forma, a document was produced later in the hearing which was described as not that in fact used at the relevant time but something similar as the forms were in the process of change. It requires the person completing the document to identify under which provisions of the regulations the proposal might be EIA development, whether it has already been screened, and if an environmental statement has been submitted. At the end of question 2 it states: "If the above thresholds/criteria are exceeded/met, the development will be scheduled 2 development and should have been screened by LPA/GO".[17]Question 5 has a table to be completed which sets out screening criteria and gives space for a full answer. Question 5 starts: "Full reasons must be given below for any decision on screening (attached separate sheet if necessary), including instances where you agree with the SO/SD provided".[18]As I have already said, very belatedly, on 1 July 2010, the Inspector signed a witness statement in which she states: "4. As a matter of fact, I was never asked to reconsider the screening direction. 5. Although it is not recorded in my decision letter, as a matter of fact I did consider whether Environmental Impact Assessment was required for the proposed development. For the reasons set out in my decision letter, including in relation to the landscape and visual impact on World Heritage Sites, I was satisfied that this development was not likely to have significant effects on the environment by virtue of factors such as its nature, size or location".[19]Before turning to the law, there is a post-script to the facts. In April 2009, the European Court of Justice decided R(Mellor) v the Secretary of State for Communities and Local Government [2010] Env LR 2 to the effect that reasons should be given for a screening decision that development is not EIA development. As a result, during the course of these proceedings the claimant sought disclosure of the reasons for the first defendant's screening direction in 2003, and a file note dated 22 July 2003 has been produced. This seems to focus almost exclusively on visual impact, including that on the AONB, and has been the subject of some criticism by the claimant. There is no evidence that the file note was before the Inspector at the time of the decision letter. The law[20]The EIA regulations seek to implement directive 85/337/EEC on the assessment of the effect of certain public and private projects on the environment. The preamble describes the purpose of the directive: "Whereas 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 these projects has been carried out, whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer which may be supplemented by the authorities and by people who may be concerned by the project in question".[21]Article 2.1 requires member states to: "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".[22]The scheme of the directive which is reflected in the EIA Regulations is that annex 1 developments will be subject to automatic assessment whereas annex 2 developments may be subject to assessment depending on the circumstances. Article 4.2 states that member states shall examine annex 2 projects through a case by case examination or thresholds or criteria set by the member state to determine whether they should be the subject of an environmental assessment. When carrying out a case by case examination, the criteria in annex 3 should be taken into account.[23]Turning to the EIA Regulations, as already indicated the proposed wind turbine is development listed in schedule 2, "industrial installations for the production of electricity", and exceeds the accompanying threshold because the area of development exceeds 0.5 hectare. By virtue of the definitions in regulation 2.1, the proposed wind turbine is therefore schedule 2 development and will be EIA development if it is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. I note that development listed in schedule 2 which lies in a sensitive area is also EIA development if it is likely to have significant effects on the environment by virtue of etc, even if the applicable threshold is not exceeded. Sensitive areas include an AONB and World Heritage Site. For the purpose of determining whether development is likely to have significant effects on the environment, regard must be had to the criteria in schedule 3.[24]Regulation 3 prohibits the grant of planning permission for EIA development, whether by a local authority, Secretary of State, or an Inspector, unless the environmental information is first taken into consideration. The environmental information is an environmental statement prepared by the developer (as to which there are specific requirements in schedule 4) and any further information, including any representations duly made about the environmental effects of the development.[25]Regulation 4 makes provision for the screening of development to determine if it is EIA development by the local planning authority (screening opinion) and the first defendant (screening direction). Regulation 4.3 provides:
"A direction of the Secretary of State shall determine, for the purpose of these regulations, whether development is or is not EIA development"
. Regulation 4.5 states that where the local planning authority or Secretary of State have to decide whether development is EIA development, they must take into account the relevant selection criteria in schedule 3. There are two important points to note as to the assessment whether development is likely to have significant effects on the environment for the purpose of deciding whether it is EIA development. First, it is necessary to look at all effects, beneficial and adverse, see BT PLC v Gloucester City Council [2001] JPL 993 at paragraph 64 to 70. Second, whether environmental effects are significant has to be judged independently of any mitigation measures which might be employed to reduce impact, unless the effect of these is sufficiently clear, see Gillespie v First Secretary of State [2003] 2 P&CR 16 and R(Catt) v Brighton and Hove City Council [2007] Env LR 32.[26]There is no provision as to how long a screening direction lasts, but Regulation 20 requires any relevant screening direction to be placed on the same part of the planning register as any planning application, or if there is no planning application it must be available for inspection at the same place as the planning register for 2 years. However, it is common ground that a screening direction may be cancelled or varied; see Evans v First Secretary of State [2004] Env LR 17. Submissions[27]In the Skeleton Argument on behalf of the claimant it was submitted that it would be contrary to the directive if the screening direction has an unlimited life, because it had the potential to undermine a prohibition on granting planning permission for EIA development without first considering the relevant environmental information. It was suggested that a direction would be valid for only 2 years as, by virtue of Regulation 22, that is the length of time for which, in the absence of a planning application, a copy must be placed on the planning register.[28]However, in the light of the parties' agreement that a direction could be cancelled or varied, neither submission was pressed at any length. This was a sensible approach. Article 4 of the directive does not contain any set procedure for determining whether a project requires an EIA assessment. It requires projects listed in annex 2 to be considered on a case by case basis and/or by reference to thresholds or criteria as to whether they should be subject to an EIA assessment. Provided a decision could be reviewed, and the need for such reviewed could be legally enforced in appropriate cases, the objective of the directive, that development likely to have significant effects on the environment be the subject of an environmental impact assessment, can be met.[29]As I have already said, it is common ground that a screening decision can be reviewed. Whether and in what circumstances a review should be considered is an important issue in this challenge, which itself demonstrates that the the need for a review can be legally enforced. There is no warrant for implying that a screening decision has a 2 year life, either to give effect to the directive, or on the language of the EIA Regulations. As was pointed out on behalf of the first defendant, a screening decision could be out of date within weeks if there was a significant change in circumstances, or it may remain relevant for years. Further, by virtue of Regulation 20, a screening opinion or direction must also be placed on the same part of the planning register at the same time as a planning application is registered which may, and in this case did, exceed 2 years after the opinion or direction is given.[30]The claimant's main complaint is that the first defendant did not consider whether or not to review the 2003 screening direction or, if it did, that consideration was flawed. It is submitted that there was a obligation on the part of the Inspectorate to consider whether to refer the case back to the Secretary of State, having regard to the unsatisfactory nature of the original direction, the passage of time, the designation of the World Heritage Site, and the existence of an internal Inspectorate practice, which it is said gives rise to a legitimate expectation.[31]In order to deal with these submissions, it is necessary to identify the test or threshold which must be passed before a decision maker can be required to review a screening decision. Counsel for the claimant, Mr Daniel Kolinsky, submitted that the question is whether the facts relied upon are capable of making a difference to the decision, whether it could effect the decision. In support of that submission he relied upon the purpose of the directive and the need to ensure that decision making powers are exercised consistently with it so that development which is likely to have significant effects on the environment is properly assessed. He also submitted that where the issue is whether the Inspectorate should refer the screening direction back to the first defendant, the question is not whether they, the Inspectorate, think the development would be likely to have significant effects on the environment, but rather whether the first defendant could reach a different decision on that question.[32]Counsel for the first defendant, Mr John Litton QC, with whom counsel for the third defendant, Mr Jeremy Pike, agreed, submitted that the question is whether the decision maker is made aware of material circumstances which, objectively, would cause him to reach a different conclusion. As a fall back, he submitted that the test was as set out in Evans at paragraph 24; was there, at the very least, a "realistic prospect" that the decision maker would reach a different conclusion? It was submitted that the tests relied upon are consistent with the test in the EIA Regulations, that a proposal is only EIA development if it is likely to have significant effects on the environment. Should the Inspector form the view that the development is not likely to have significant effects on the environment, there is no need to refer the issue of screening back to the Secretary of State. Discussion[33]It is necessary to refer in more detail to the decision in Evans. That was a challenge by a third party to an Inspector's decision to grant planning permission for the construction of halls of residence. After planning permission had been refused by the local planning authority, and before the Inspector determined the appeal, the Secretary of State issued a screening direction to the effect that the proposal was not EIA development because, though it was listed in schedule 2 and the relevant threshold was exceeded, the development would be unlikely to have significant effects on the environment. No complaint was made about that, nor did anyone ask for the direction to be reviewed.[34]When granting planning permission, the Inspector concluded that the proposed building: "Would have have a significant effect on the character and appearance of its immediate surroundings by reason of its design, size, scale and external appearance" but he did not consider it would be an adverse impact. In consequence, the third party challenged the decision on the grounds that 1) the Inspector's conclusion was irreconcilable with the Secretary of State's screening direction; and 2) in that event, the proposal was EIA development and should have been assessed as such. The challenge was rejected.[35]Simon Brown LJ, as he then was, gave the judgment of the court and said: "In my judgment, the argument falls at the first hurdle. The judgments being made respectively by the Secretary of State in deciding what screening direction to give, and by the Inspector in deciding the planning appeal, are quite different. The Inspector was not making or purporting to make an assessment of the development for the purposes of the Regulations and, in particular, was not having regard to the selection criteria in schedule 3 to the Regulations. His concern was rather with the planning merits of the development on particular aspects of the charcter and appearance of the area. The Inspector did not find that the development had had significant effects on the environment within the meaning of the Regulations. Indeed, he never had to address that question. The Secretary of State, by contrast, did have to. He was required, moreover, by Regulation 4.5 to take into account 'such of the selection criteria set out in schedule 3 as irrelevant to the development'. Superficially I acknowledge the Secretary of State's direction and the Inspector's conclusions, as expressed in the decision letter, appear to sit uneasily together. On closer analysis, however, they are perfectly compatible" (paragraph 19).[36]After referring to the fact that a screening direction is decisive unless the Secretary of State cancels or varies it, the judgment goes on to examine obiter what an Inspector should do "if, in the course of the appeal, he finds himself seriously doubting the correctness of the Secretary of State's screening direction". It continues: "Clearly, the Inspector ought not to invite such re-consideration merely because, on essentially the same facts, he finds himself in disagreement with the Secretary of State. He must recognise that there is often room for two views in making judgments of this nature and that the regulations accord the final responsibility to the Secretary of State. If, however, the Inspector were to discover during the course of the appeal process that the Secretary of State had proceeded under some important misapprehension as to the nature of the proposed development or the assumptions underlying it, or if other material facts came to light which appeared to invalidate the basis of the Secretary of State's direction, then he might well think it appropriate to invite reconsideration of the matter. This, however, would be expected to happen only very exceptionally, and only if the Inspector thought there was, at the very least, a realistic prospect of the Secretary of State now coming to a different conclusion. It should be recognised, moreover, that the Inspector is under no express duty to refer the matter back to the Secretary of State, and indeed has no express power to do so. The Regulations are silent on the point. In any given case therefore, his decision on whether or not to refer the matter back to the Secretary of State will fall to be judged solely by the touch stone of rationality. If, as here, no one even asked him to consider referring the matter back, it is difficult to see how his omission to do so could be judged irrational. In any event, nothing came to light at the inquiry before the Inspector here such as to invalidate the basis of the Secretary of State's direction" (paragraph 24).[37]In my judgment, it is clear from this paragraph that, whatever the test or threshold to be met, the focus should be on the potential difference a change in circumstances may make to the Secretary of State's decision as to whether the proposal is EIA development. He or she is charged under the EIA Regulations with making the screening direction, even if, in a transferred appeal, the competent authority taking a development consent decision is an Inspector. Accordingly, only the Secretary of State can cancel or vary that screening decision. I do not accept Mr Litton's submission that, if an Inspector considers the proposal is not likely to have significant effects on the environment, without more there is no need to refer the matter back to the Secretary of State. In my judgment, that would be to usurp the function of the Secretary of State to make, vary or cancel a screening direction. Further, as Simon Brown LJ points out at the beginning of paragraph 24 of Evans, there is often room for two views on making judgments of this nature, and the fact that an Inspector or an administrative officer of an Inspectorate forms one view does not necessarily mean the Secretary of State will form the same view. That is not to say that an Inspector's view as to whether development is likely to have significant effects on the environment will not have an important bearing on whether the screening direction should be referred back to the Secretary of State.[38]As to the appropriate test or threshold, I accept Mr Kolinsky's submissions that the question is whether the change in circumstances could rather than would effect the Secretary of State's screening decision. If there are flaws in the screening opinion or direction then they will found a challenge to a later grant of planning permission; see, for example, R(Catt) v Brighton and Hove City Council. Further, in these proceedings, it was not disputed that, if I conclude the Inspectorate should have considered whether to refer the screening direction back to the first defendant and did not do so, or did so but in a way which was flawed, that vitiates the grant of planning permission. Thus, a screening decision must be lawful at the date of any planning permission. Unless a screening direction is referred back to the Secretary of State in the proper case, there is a real risk that permission may be granted for development which is likely to have significant environmental effects without those effects being properly considered, contrary to Article 2.1 of the directive.[39]Only the Secretary of State has power to cancel or vary a screening direction. The decision whether a change in circumstances causes him to change his mind must be for him. If a decision need only be referred back should the Inspectorate consider a change in circumstances would result in a different screening decision, than the Secretary of State's function is usurped, and there may be cases where he would have found the proposal to be EIA development. In that event, a decision on whether or not to grant planning permission will have been taken without the benefit of the environmental information in the manner required by the EIA Regulations and directive. The decision of the House of Lords in R(Barker) v London Borough of Bromley [2007] 1 AC 470 underlines the importance of a relevant change in circumstances being take into account for the purposes of Regulations and directive.[40]I also consider that this analysis is consistent with the approach adopted in paragraph 24 of Evans. A change of circumstances will only be relevant, in the sense that it could lead to a different decision, if the prospect of it resulting in a different decision is realistic and not fanciful. It is not surprising that Simon Brown LJ envisaged the nature of any change which would justify a reconsideration being an important misapprehension or material facts coming to light which invalidated the screening direction, given the mere passage of 8 months between the screening direction and the decision letter in that case, and no suggestion of any change in circumstances.[41]Similarly, the reference to it being appropriate to invite a reconsideration only exceptionally has to be seen in the same context. Mr Litton accepted that Simon Brown LJ was unlikely to have been contemplating a 6 year delay. That is not to say that every change in circumstances which might be relevant needs to be referred back to the screening decision maker. Mr Pike submitted that there was a risk of local planning authorities and the Secretary of State becoming inundated with letters asking for screening decisions to be reconsidered. However, a screening decision involves a judgment as to whether development is likely to have significant effects on the environment (my emphasis). Whether a change in circumstances could realistically lead to a different decision must be addressed in that context. There may be many changes in circumstances where it is possible to say that they could not lead to a different screening decision.[42]With this analysis in mind, I turn to the four factors which Mr Kolinsky submitted justified the Inspectorate considering whether or not to refer the screening direction back to the first defendant for reconsideration. As to the file note dated 22 July 2003, which it is said evidences the unsatisfactory nature of the screening direction, Mr Kolinsky expressly disavowed any argument that the screening direction was unlawful when made. He submitted that the superficial assessment of impact on the AONB, lack of a proper site visit, and factual error as to the location of Dartmoor, made a strong case for reconsidering the direction. However, if any perceived inadequacies do not vitiate the direction, and the Inspectorate was wholly unaware of the file note, it is difficult to see how that could justify requiring the Inspectorate to consider referring the screening direction back to the first defendant.[43]The lapse of time between the screening direction dated 24 July 2003 and the grant of planning permission on 15 September 2009, is certainly considerable and far greater than would normally be expected. Mr Kolinsky relied upon Mr Litton's acceptance that the longer the passage of time the more likely there has been a change in circumstances. However, absent an identifiable material change in circumstances, I do not consider that the mere passage of time can give rise to the requirement for the screening direction to be referred back to the first defendant. As Mr Litton submitted, the screening direction could become out of date almost immediately as a result of a material change in circumstances. Alternatively, absent such a change, it could remain relevant for many years. The claimant has not identified any new consideration relevant to the screening decision which could realistically lead to a different decision (other than designation of the World Heritage Site), therefore it does not provide a basis for requiring the Inspectorate to consider whether to refer back.[44]Mr Litton accepted that the World Heritage Site designation was a material change in circumstances. As I have already described, whereas the AONB's, the visual impact on which was considered for the purposes of the screening direction, lie about 4km and 6km from the appeal site, the World Heritage Site areas lie 1.2km and 3.7km away. Further, whereas the AONB is a national designation, a World Heritage Site is of international or universal importance. However, Mr Litton submitted that the question is whether, taking that into account with all the other information, it means the development is likely to have significant effects on the environment. For the reasons already given, I consider that the correct question was whether the change could realistically lead to the first defendant deciding that the proposed wind turbine was EIA development, ie that it would be likely to have significant effects on the environment. In my judgment, the World Heritage Site designation was potentially material in this sense, such that the Inspectorate should at least have considered whether or not to refer the screening direction back to the first defendant for re-consideration. I have already referred to the physical proximity and intrinsic importance of the World Heritage Site. For many developments on the appeal site no issue may arise, but the proposed wind turbine has a hub height of 50 metres and a blade tip height of 81 metres, and the appeal site is on elevated ground. At the very least, therefore, I consider the Inspectorate should have addressed its mind to whether the screening direction should have been referred back to the first defendant on the grounds that it could realistically effect the screening decision. Further, even though the need to consider if the screening direction should be referred back to the first defendant arises from the World Heritage Site designation, when considering whether the first defendant could realistically reach a different decision, regard must be had to the effects of the development as a whole. This is because, as Mr Litton recognised, the screening question is whether, taking into account the change in circumstances with all the other information, the development is likely to have significant effects on the environment.[45]Reliance was placed on the fact that no one asked the Inspectorate or first defendant to re-consider the screening direction as an indication that there was no need for such re-consideration. In the context of an appeal dealt with by written representations, and where the objectors were unrepresented, I do not consider this point to carry much weight.[46]Mr Litton submitted that if a duty arose to consider referring the screening direction back to the first defendant, then it had been discharged by the Inspector as set out in paragraph 5 of her witness statement. Before dealing with this point it is convenient to deal with the Inspectorate's desk instructions relating to screening, the last matter relied upon by Mr Kolinsky as requiring the Inspectorate to consider referring the screening decision back to the first defendant. In my judgment, the desk instructions clearly envisage a basic form of screening of all appeals to see if there is any question of them involving EIA development. In most cases the screening will go no further than identifying that the proposal is not listed in schedules 1 or 2 or, if it is development listed in schedule 2, that it does not fall within a sensitive area and no applicable threshold is exceeded. Where the development is listed in schedule 2, and either falls within a sensitive area or the applicable threshold is exceeded, the desk instructions envisage that consideration will be given to whether the development will be likely to have significant effects on the environment, including by reference to the criteria in schedule 3. What is quite clear is that the desk instructions require this exercise to be carried out in every case, not just those in which there is no current screening opinion or direction. Indeed, although this was not conceded, neither was the contrary argued. This is, no doubt, a sensible practice in the light of the analysis that I have already set out.[47]Mr Kolinsky submitted, relying on R(Majed) v London Borough of Camden [2009] EWCA Civ 1029 that this gave rise to a legitimate expectation that the practice would be followed in this case unless there was a good reason not to, and failure to do so renders the grant of planning permission unlawful. Further, he submitted that it did not matter that the claimant was unaware of the practice, relying on R(Rashid) v Secretary of State for the Home Department [2005] Imm AR 608. Mr Litton submitted that Majed was distinguishable as there the practice, a statement of community involvement, was published and that Rashid was a case of substantive expectation and involved conspicuous unfairness and an abuse of power.[48]There is no evidence that the practice envisaged by the desk instruction was followed here. However, in my judgment, there has been no breach of legitimate expectation in this case. The principle of legitimate expectation is rooted in the concept of fairness. It is difficult to see in what respect it would be unfair to the claimant for the Inspectorate to fail to follow a procedure he was unaware of and which is simply a form of good practice to try and ensure that lawful decisions are taken. Although, as an objector to the proposed wind turbine, he has an interest in ensuring that any grant of planning permission is lawful, the procedure does not involve him and he has no expectation of being able to participate in it. The facts of Majed are quite different. There, the local authority published a formal document that set minimum standards for consultation on planning applications and, in effect, undertook to notify adjoining occupiers of specific types of planning application. The claimant was such an occupier who the authority had failed to notify and who was thereby prevented from putting his objections forward.[49]Rashid is also distinguishable for the reasons given by Mr Litton. It concerned a substantive expectation which applied directly to the claimant. If the Secretary of State had followed his policy, the claimant would have obtained a real and personal right, namely asylum. Although the judgments refer to legitimate expectation, the ratio is set out in the judgment of Pill LJ, with whom May LJ agreed, at paragraphs 34 and 36: "34. I accept counsel for the Secretary of State's submission that this is not the typical case of legitimate expectation which usually arises in the circumstances he described. It is, as the judge recognised, and counsel for the claimant rightly submits, a claim of unfairness amounting to an abuse of power, of which legitimate expectation is only one application. The abuse is based on an expectation that a general policy for dealing with asylum applications will be applied and will be applied uniformly. Serious errors of administration resulted in conspicuous unfairness to the claimant. 36. I agree with the judge's conclusion that the degree of unfairness was such as to amount to an abuse of power requiring the interventions of the court. The persistence of the conduct, and the lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time, and in relation to a country which, at the time, would have been expected to be in the forefront of the defendant's deliberations. I am very far from saying that administrative errors may often lead to a finding of conspicuous unfairness amounting to abuse".[50]There is no suggestion that the present case involves serious administrative errors resulting in conspicuous unfairness to the claimant or an abuse of power.[51]I return to the question as to whether the Inspector did consider if the screening direction ought to be referred back to the first defendant for re-consideration. It will be apparent from the reasoning set out above that I do not consider the Inspector did so. In paragraph 4 of her witness statement she states that she was never asked to reconsider the screening direction, and paragraph 5 does not indicate that she addressed her mind to the right question, namely whether the designation of the World Heritage Site, taken together with all other considerations, could realistically lead the first defendant to conclude that the proposed wind turbine would be likely to have significant effects on the environment. Rather, she appears to have asked herself the question "do I think the proposal would have significant effects on the environment?"[52]Further, even if one considered paragraph 5 of the Inspector's witness statement on the assumption she had asked herself the right question, in my judgment, her answer is flawed. She relies on the reasons given in the decision letter which include that the development was acceptable and planning permission should be granted. Although it is fair to say the Inspector did not consider there would be any detrimental impact on the AONBs or World Heritage Site in themselves (see paragraph 7, 9 and 20) she found that there would be a detrimental impact on the local landscape (paragraphs 11 to 15 and 21), noise impact which would be more than minor and required mitigation by conditions (paragraphs 22 and 27) and that there would be significant impact on meeting the need for renewable energy (paragraph 26). Her conclusions are headed "Balancing exercise and conclusion" and, in paragraph 28, she balances the harm which she describes as "not of great magnitude" against the benefits. As paragraph 19 of Evans makes clear, an assessment of planning merits is quite different from a screening decision. Further, arguably the Inspector does consider that development would have significant impact in some respects, but that this would be outweighed or could mitigated by a condition or is a benefit.[53]Mr Litton submitted that the present case is stronger than Evans; that the Inspector's view that the building would only have a significant impact on its immediate surroundings meant, by definition, that it did not have significant effects on the environment as a whole. By contrast, here the Inspector thought the effects of the proposed development as a whole would only be limited. However, I accept Mr Kolinsky's submission that paragraph 19 of Evans is expressed more widely than this. Simon Brown LJ refers twice to the distinction between the Inspector's "assessment of the planning merits" and the need for the Secretary of State to consider the selection criteria in schedule 3, and whether the development would have significant effects on the environment within the meaning of the EIA regulations. Fundamentally, the purpose of the Inspector's assessment and that of the screening decision are quite different. The fact that a development is likely to have significant effects on the environment means that those effects must be fully assessed as part of the democratic process, but at the end of the day the development may well be acceptable such that planning permission should be granted.[54]For these reasons, I do not consider that the Inspector's witness statement plugs the gap in the first defendant's decision making processes. It is therefore not necessary for me to decide whether I would refuse to allow the first defendant to rely upon it. However, if I did have to make that decision, I probably would have allowed it. This is not a case like R v Westminster City Council ex parte Ermakov [1996] 2 AER 302 where the evidence altered the reasoning for a decision already taken and for which reasons had already been given. The witness statement records that a decision was taken and gives reasons for it in circumstances where there was no other means of ascertaining that that had happened.[55]In response to a question from me, Mr Litton submitted that if the challenge succeeded in principle then I should exercise my discretion not to quash the planning permission on the grounds that if the Inspector considered whether to refer the screening direction back to the first defendant, it was inevitable she would conclude that it was not necessary because there was no realistic prospect of the first defendant reaching a different screening decision. In my judgment, it would be inappropriate to withhold relief. It would only be right to do so if I considered that the only answer to which the Inspector could come is that the first defendant could not realistically reach a different screening decision. I do not consider that to be the case, and certainly not on the basis of the assessment in the decision letter.[56]In these circumstances, in so far as they go beyond the grounds set out in the claim form, I do allow the claimant to rely on the new grounds of challenge. It follows that planning permission will be quashed. I make it clear, however, that this decision does not prevent the Inspector, or an administrative officer of the Inspectorate, from rationally concluding in due course that, taking into account all the circumstances, including any changes since 2003, the Secretary of State could not realistically come to a different screening decision.[57]Now, has anybody got any applications?[58]MR KOLINSKY: My Lady, we are grateful for the judgment. Before I deal with ancillary matters, (inaudible) there was one instance shortly before my Lady mentioned the Majed case where My Lady said "scoping" when she meant "screening". It may be worth picking that up in the transcript.[59]THE DEPUTY JUDGE: Thank you for pointing that out. I will get provided with a draft transcript in due course and I can have a look and check that.[60]MR LITTON: Whilst we are on that, because it is the same point, I think you were quoting from paragraph 26 of the decision letter and you referred -- you said when giving your judgment that there was a target of 20 per cent of the UK has been set for 2030, when it is actually 2020.[61]THE DEPUTY JUDGE: Sorry, that is a typo. Thank you.[62]MR LITTON: Yes, actually just one other point. In part it may be because you were reflecting what I said in my skeleton argument, that was in relation to the Regulation 22, requirement for publicity of the scoping decision, whether opinion or direction as being on the planning register. Actually, it is simply in a place where the planning register is kept, so it does not necessarily have to be kept on the planning register per se, but if one looks at Regulation 22 then it is in a place where the register is kept.[63]THE DEPUTY JUDGE: I will look at that. I think, is it not Regulation 21 that deals with planning?[64]MR LITTON: I think your Ladyship was perhaps reflecting what I said in paragraph 64 of my skeleton argument, which is not entirely correct in that sense.[65]THE DEPUTY JUDGE: All right. Thank you.[66]MR LITTON: In the same place as the register rather than on the register itself.[67]THE DEPUTY JUDGE: Thank you.[68]MR KOLINSKY: My Lady, there is an application for costs for the claimant's costs. I do not know --[69]THE DEPUTY JUDGE: Have you got a schedule?[70]MR KOLINSKY: There is. We were hoping it might have reached you.[71]THE DEPUTY JUDGE: No, I have not seen that, sorry.[72]MR KOLINSKY: Whilst we are locating the further copy of the schedule, the figure including VAT is a figure of £29,000. Our position would be that we would ask for costs to be summarily assessed in that amount and obviously I will deal with anything that arises by way of reply.[73]THE DEPUTY JUDGE: All right. Mr Litton, have you had an opportunity to consider the schedule?[74]MR LITTON: We have. I have got some disagreement in relation to the actual figures, but before we even get to the figures, in my submission this is a case where it would be entirely appropriate for your Ladyship to reduce the percentage of the costs recovery altogether, because in my submission the claimant has succeeded on one very very narrow ground. It is not the ground which, even as late as 1 April when asked the question, they particularly relied on, and indeed much of the argument has then, in court, been taken up with further additional grounds of claim, first appearing in the skeleton argument of the claimants which ultimately your Ladyship has found no merit with. Therefore, in those circumstances, to allow 100 per cent costs recovery, whatever the sums are, would not be appropriate, not least because the amount of work which has had to be done in relation to the narrow claim that succeeded, the ground that was actually pursued, certainly does not warrant the paperwork that was produced in court, which was largely directed at the first of the claimant's grounds, ie the un-sustainability of the conclusion that this was not EIA ground, rather than the very narrow ground on which the claimants have actually succeeded. So it would be wholly inappropriate in my submission to allow 100 per cent costs recovery in this case.[75]Whatever your decision is in relation to that, my Lady, then I do have some observations in relation to the amount of costs that are being sought to be recovered, but whether that is appropriate for you to deal with on a summary basis or whether it is matter that ought to go over for detailed assessment in the way that I think the claimants themselves would have, had they lost, sought a detailed assessment of our costs, even though our costs are some £12,000 or so less than their own. I say that in the context of the amount of time that the claimants have spent on documents, but of course you will recall that the documentation search was a burden that was put on the first defendant as a consequence of the request for disclosure of documents, and even then we spent considerably less time than the claimants did in relation to documents, as I say, in relation to documents that quite frankly were wholly unnecessary to the point that was actually pursued at the hearing.[76]THE DEPUTY JUDGE: All right. Thank you.[77]MR KOLINSKY: My Lady, dealing with the percentage reduction point, the need to reconsider the screening direction has been central to the claim from the outset, so I do not accept that this is a peripheral point that has emerged from nowhere at all. Moreover, I respectfully say that a great portion of the costs that have been incurred have been incurred because of the unusual circumstances of this case, where the claimant's lawyers are actually unable, on the face of any public decision, to discern the basis for that decision. So, the costs that have been incurred have been costs that have been incurred on having to pursue successfully a paper chase which deals with what the planning Inspectorate's practice is in relation to the view of screening direction. Whilst it has not founded a successful claim on legitimate expectations, it has been a material part of the proper understanding of the context which my Lady has referred to in the judgment. Also, the profoundly unsatisfactory situation where it simply is not apparent from any document that is publicly available to the claimant what the basis of the Inspector's decision is in relation to EIA matters. So I would respectfully say that the appropriate approach would be to deal with the costs following the event, because the various formulations of the legal argument have really been related to the central point, which was that the EIA process in this case has been profoundly unsatisfactory and that the screening direction is over 6 years old and should have been thought about but never was. My Lady, that is the point on the percentage reduction.[78]On the quantum, it is revealing that the interested party has served a schedule on us which presumably was going to be prayed in aid in support of a Bolton application, that shows a greater quantity of overall costs and a greater quantity of time spent. I would respectfully rely on that as a barometer of the reasonableness of the quantum of those instructing me's costs. An alternative approach, if it is too difficult or time consuming to fairly do a summary assessment, would be to order an interim payment and for the matter to be dealt with by detailed assessment, if not agreed, which would allow the experienced solicitors on all sides to discuss the best way forward. So, my Lady, I do not want to get drawn into detailed analysis of the actual schedule, but would pray in aid that an alternative approach, which obviously -- the amount in of the interim payment would depend on my Lady's decision in relation to the first element, namely whether there should be a percentage reduction.[79]THE DEPUTY JUDGE: All right. Well, Mr Neill, are you making an application for costs then?[80]MR NEILL: My Lady, no, not in terms --[81]THE DEPUTY JUDGE: No. All right, do you want me to have a look at the schedule?[82]MR KOLINSKY: I think that may be helpful in response to the submission that our costs are manifestly excessive. My Lady, my instructing solicitor, Mr Buxton is indicating the possibility of us agreeing something. I think he has in mind the possibility of trying to agree something outside court, I am not sure whether -- I think the formulation that we were indicating would be that, if my Lady does not want to get into a detailed assessment, then the appropriate approach would be make an interim payment and detailed assessment discussions could take place. I have got a copy of the interested party's schedule that was served on us, the total of that £38,896 plus VAT. I am afraid I have marked elements of it but not with any comments.[83]THE DEPUTY JUDGE: Do not worry.[84]All right. Mr Kolinsky, you can have half of your costs. It does not seem to me that there is anything particularly unreasonable about the figures in themselves. However, first of all there are a great many grounds which have been put forward during the course of these proceedings which either were not pursued at all or you have lost on; and secondly, of the voluminous documentation in the claim bundle, we have looked at only a fraction of it and, in my view, it was totally unnecessary to include all of that material that was before the Inspector, which could only have been relevant to the argument in paragraph 1 of the original claim form which was in not pursued at all. So, I will order that the first defendant pay the claimant's costs which I will summarily assess at £15,000 including VAT.[85]Can I give you back that.[86]MR LITTON: My Lady, I have a further application; an application for permission to appeal on the basis that either the appeal has a real prospect of success or that there is some other compelling reason why the appeal should be heard. The appeal, my Lady, relates to that ground on which we lost, ie the threshold question at which an Inspector should consider referring back a screening decision to the appropriate decision taker. Plainly, in Evans those passages relied on are obiter, we all agree with that, and of course Evans itself did not deal directly with the circumstances that have arisen in this particular case, although it did try and give some guidance in relation to such a matter. Therefore, it is matter, plainly, of some considerable importance and in relation to which we would say that there is also some considerable prospect of success. So, on that basis, we would ask for permission to appeal for this matter to be considered in the light of Evans and the obiter dicta of Simon Brown LJ in Evans, in a factual context which actually engages the very sort of guidance with which their Lordships were seeking to give but did not have the factual context or matrix in which to give definitive guidance in that respect. So, I do so say that it satisfies both of the requirements in relation to permission.[87]In any event, my Lady, I would ask, even if it is refused, I would ask for time in relation to the filing of either an application for permission to appeal or grounds of appeal for 21 days after the approved transcript of the judgment has been approved by your Ladyship. Not least because of the holiday season that is coming upon us, but inevitably I have endeavoured to take as good a note as I possibly can but I think it is not possible to take a complete note in the way it would be necessary if we are going to consider properly the formulation of any ground of appeal as part of the application for permission.[88]THE DEPUTY JUDGE: Have I got power to do that, to extend the time for appealing?[89]MR LITTON: My Lady, yes, and it is frequently done. CPR 52.42 says:
"The appellant must file the appellant's notice to the appeal court within (a) such period as may be directed by the lower court, which may be longer or shorter than the period referred to in sub paragraph (b); or (b) where the court makes no such direction, 21 days after the date of the decision of the lower court if the appellant wishes to appeal"
. So, yes, your Ladyship does have power.[90]THE DEPUTY JUDGE: Thank you.[91]MR LITTON: In circumstances such as this, we would obviously want to look carefully at the judgment in its approved form before we take the next step.[92]THE DEPUTY JUDGE: Yes, all right. Well, I am not going to grant permission to appeal. I appreciate that the paragraph I have relied upon in Evans is obiter, but I have applied a Court of Appeal authority to the facts of this case and, if the Court of Appeal think there is a point of particular importance, then it is for them to decide whether to deal with it. But I will extend time for any application for permission to appeal to the Court of Appeal to 21 days after the approved transcript is published.[93]MR LITTON: I am grateful, my Lady.[94]My Lady, I am sorry, you have not dealt with my learned friend's application that there should be an interim payment of --[95]MR KOLINSKY: I am actually not sure it arises.[96]THE DEPUTY JUDGE: I thought that was only if I did not make an order for costs?[97]MR KOLINSKY: No, it is very fair of my learned friend to point it out, but I think actually my Lady is right. Because you have summarily assessed them, it does not arise. I am most grateful.[98]THE DEPUTY JUDGE: Good. All right.

Cited in 1 later judgment