“[49] [Council officers] concluded that the potential impact of the development would be insignificant given proper planning conditions and management enforceable under s 106. [50] It must have been obvious that with a proposal of this kind there would need to be a number of non-standard planning conditions and enforceable obligations under s 106. It is precisely those sort of controls which should have been identified in a publicly-accessible way in an environmental statement prepared under the Regulations. [51] Thus the underlying approach adopted by Mr Hussell was in error. In so far as one can discern the Council's reasoning, it was erroneous on the two grounds set out above: it was no answer to the need for an EIA to say the information would be supplied in some form in any event, and it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects?”
“[36] When making his screening decision, the Secretary of State was not, in my judgment, obliged to shut his eyes to the remedial measures submitted as a part of the planning proposal. That would apply whatever the scale of the development, and whether (as in British Telecommunications) some harm to the relevant environmental interest is inevitable, or whether (as is claimed in the present case) the development will actually produce an improvement in the environment. As stated in Bozen, it is the elements of the specific project that must be considered, and all the elements of the project relevant to the EIA. In making his decision, the Secretary of State is not required to put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision. If the judges in the cases cited took a contrary view, I respectfully disagree, although it appears to me that both Sullivan J in Lebus, and Richards J in the present case, did not require all remedial or mitigating measures to be ignored. [37] The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects upon the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously, but the Secretary of State is not, as a matter of law, required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases, the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects upon the environment, even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not, in my judgment, predetermined either by the complexity of the project or by whether remedial measures are controversial, although, in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration.”
“Where the Secretary of State is contemplating an application for planning permission for development that, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial, although I should have thought that there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established, and are not plainly uncontroversial, then, as it seems to me, the case calls for an EIA. If the Secretary of State were then to decline to conduct an EIA, it seems to me that he would pre-empt the very form of enquiry contemplated by the directive and regulations, and, to that extent, he would frustrate the purpose of the legislation.”
“However, I would make it clear that, in my view, the question of whether, in a case such as this, the Secretary of State can, in making his screening decision, take into account proposed conditions to be attached to the grant of permission turns not on the complexity or controversiality of the development as such but on the nature of the remedial measures contemplated by such conditions. Such measures can be taken into account if, fairly considered, they are, of themselves, unlikely to have significant effects upon the environment because, for example, they are of limited impact or well established to be easily achievable within the process of the development.”
“[33] Developments come in all forms and the approach to the screening opinion must have regard to the development proposed. There will be cases, such as Gillespie's case, where the uncertainties present, whether inherent or sought to be resolved by conditions, are such that their favourable implementation cannot be assumed when the screening opinion is formed. [34] On the other hand, there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence. There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion. It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required. An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment, and a planning judgment made. ... [35] ... Laws LJ was considering the facts in Gillespie's case and I do not consider he was asserting a general principle that, only when remedial measures are 'uncontroversial', can they be taken into account when giving a screening opinion. [37] When forming a screening opinion, the council were not required to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative or remedial measures. The consequences of providing the additional seating, and other changes, could not be predicted with certainty but, as Collins J noted, the council had extensive knowledge and experience, supported by surveys, of the impact of existing football league and cup matches upon the environment. On the basis of that, and the studies into future impact, they were entitled to assess the likely impact of the additional capacity proposed in the context of the continuing ameliorative measures also proposed and to form the screening opinion they did.”
“In this instance the proposed development includes an underground storage of slurry which would threaten potable water supplies drawn from the chalk aquifer. Any leakage of the slurry tank would cause pollution of groundwater.”
“Groundwater and Contaminated Land A scheme will need to be agreed incorporating some or all of the measures proposed in the Renewable Zunkunft correspondence, in order to ensure that the proposal does not cause pollution of groundwater.”
“The development hereby permitted shall not be commenced until such time as details of construction of the underground slurry tank have been submitted to and approved by the local planning authority.”
“This development has the potential to give rise to significant adverse environmental impacts to groundwater and surface water quality. The proposed development includes the underground storage of slurry which has the potential to threaten potable water supplies drawn from the underlying chalk aquifer.”
“Because we consider this to be a marginal case, the Council should however be satisfied that prospective ameliorative measures are enforceable by standard planning conditions appended to any planning permission granted. On this point ... the Council may wish to exercise judgment on whether the applicant has provided sufficient information on the construction of the lagoon, notably material to be used for lining, and the design of the drainage system, as discussed in previous correspondence.”
“Drainage and Ground Water Source Protection The site overlies a major aquifer used for public drinking water supply abstractions and is within an Environment Agency Groundwater Source Protection Zone 2. Any pollutants entering the groundwater beneath the site could potentially contaminate the drinking water supply within 400 days. The Environment Agency has indicated that the development has the potential to give rise to significant adverse environmental impacts to groundwater and surface water quality. However, importantly, the Environment Agency went on to say that these impacts could be avoided by careful design and the application of Best Available Techniques (BAT)…. The design of the facility would, indeed, incorporate the necessary measures to address the management of both existing and surface water systems and would ensure that such impacts are not likely to arise. This will be secured by conditions which were requested by the Environment Agency to be attached to the grant of planning permission for the proposed development, pursuant to which the Agency raised no objection to the planning application for the proposal.”
“a condition preventing any soil stripping until a scheme making provision for, inter alia, construction of the underground slurry tank had been submitted to and approved by the Council (condition 7)”
“…the potential significant adverse environmental impacts discussed in this letter and in previous correspondence, can be addressed by ameliorative measures that, based on confidence, knowledge and experience of the use of Best Available Techniques which incorporate systems designed to prevent damaging emissions, would reduce the impacts to a level that would not give rise to harm.”
“Proposals for anaerobic digestion facilities will not be approved unless they are accompanied by a site-specific risk assessment based on clear independent evidence which shows that the bio-aerosol levels can be maintained at appropriate levels at dwellings or workspaces within 250m of a facility.”
“6.29 ... However, residents and workers on the Denham Estate are protected by normal health and safety legislation and the Applicant’s duties under the same. 6.30 Accordingly, and taking into account the distances between the proposed facility and properties outside of the Applicant’s ownership, the Environment Agency Guidance and the enclosed nature of the anaerobic digestion process, it was the professional opinion of expert officers that a risk assessment was not in this case necessary.”
“(a) Where planning permission is granted, the notice shall- (i) include a summary of their reasons for the grant of permission; (ii) include a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and (iii) where the permission is granted subject to conditions, state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision” (i) include a summary of their reasons for the grant of permission; (ii) include a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and (iii) where the permission is granted subject to conditions, state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision”
“…on its face does enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted and it enables it to be created by means wholly outside any statutory process. It undermines the effect of specifying floorspace limits. I do not consider that a public document such as a planning permission should contain such a provision…. The floorspace limits are of central importance”
“This is not a Midcounties case. [The] condition .. is not concerned with any aspect of the permitted superstore at all. It is rather concerned with ancillary highway works. Mr Tucker accepts that the facts in Midcounties are different from those in this case, but says that its underlying principle applies here nonetheless. I disagree because there is no sense in which this condition operates to subvert the planning process by allowing for a key element to be changed without the formality of a formal application or application to vary.”