“7.40. The Hilltop Activity Centre archery games and caving areas to the west are not considered to be as sensitive as the woodland school area to the north of the site and due to proximity to the main road and the existing recycling centre was not included within the assessment. Additional acoustic fencing has been added to the western boundary in addition to the assessment requirements as a courtesy measure in recognitions of the concerns see point 3 below. 3. Suggest inclusion of a 2.5 metre noise barrier to the west boundary. 7.41. The noise assessment concludes that an acoustic barrier should be provided only as mitigation on the northern boundary of the site. However, and whilst it is not considered a requirement, the applicant will extend the living acoustic fence along the western boundary to provide additional noise attenuation above that which is considered necessary. Although any noise created on the recycling centre will be minimal, living acoustic fencing will be installed along the northern and western boundaries in additional consideration of the neighbouring activity centre. As this living fence grows it will completely cover the security fencing in those elevations as shown in the attached example.”
“Notwithstanding this and accepting the Stonehill Way site, on the edge of the AONB is larger than required, the site overlooks the retail estate and residential properties and onto Cromer town centre itself. The site can be seen for a considerable distance. It would bring traffic from a more rural location recycling centre into the centre of Cromer, which especially in peak summer months would be extremely undesirable. It is also understood considerable targeted site investigation works would be required before development as there is visible subsidence across the site, especially to the right-hand side of the entrance gate. It is in a highly exposed location on the hilltop overlooking Cromer town centre. The site will be susceptible to considerable exposure to winter winds from the North, Northeast, East and Northwest, making for a potentially unpleasant location for site users and staff during the winter, in periods of poor weather.”
“3.21 Considering the policies set out above it is considered on balance that the principle of locating the proposed HWRC in the Norfolk Coast National Landscape is a departure from the development plan given that adverse effects will be felt on the National Landscape and the overarching ambition of the plans is to protect and enhance these areas. The assessment of the impact on the Norfolk Coast National Landscape is dealt with in detail at Section B: Landscape & Visual Impact in this report. The applicant carried out an initial Site Selection Assessment based on a defined search criteria set out in the Planning Statement back in June 2017, which was provided as part of the application and looked at two available sites (Land at Cromer Road, East Runton and Land at Northrepps, Cromer) after EDT Committee sought further work on a replacement for the current HWRC. However, the two sites identified were discounted. The applicant has also alluded to a further Site Selection Assessment being carried out in 2019 with 15 land agents that brought forward three potential options (all seemingly in the National Landscape), but the CPA have not been provided with a copy of this assessment to fully assess. 3.22 The CPA, on balance, cannot categorically say that no land was available outside of the National Landscape and on land that would meet NMWLDF (2011) Policy CS6 at the time of the assessments that would cause less harm than the site considered under this application to meet the requirements of NMWLDF (2011) Policy DM6 and NNLDFCS (2008) EN1. Whilst the applicant has set out the timeline of the development of the proposal, the CPA would have expected a more recent site selection exercise to have been carried out and submitted given the one submitted was 6 years prior to the application being lodged in order to fully comply with policy. 3.23 The NPPF (2023) which is a material consideration when determining a planning application stress in paragraph 182 and 183 the great weight that should be given to conserving and enhancing landscape and scenic beauty of National Landscapes as these have the highest status of protection. It states permission should be refused for ‘major development’ other than in exceptional circumstances and where public interest can be demonstrated. Whether something is considered major development, is a matter for the County Planning Authority (CPA) when considering its nature, scale and setting and whether the impacts could be significant on the National Landscapes purpose for designation. 3.24 The definition of ‘major development’ in this instance differs from that found inThe Town and Country Planning (Development Management Procedure) (England) Order 2015 as amended, where waste development as a whole is considered to constitute major development. In this instance given that the site is essential infrastructure for the use of the local community to dispose of waste, only roughly 0.5ha in scale with a relatively low throughput of 6,000tpa, no difference in traffic movements given it is serving the same catchment as the existing facility, is located adjacent to a primary transport route, the A148 and the current operational HWRC facility (which is also located in the National Landscape), the CPA, on balance, do not consider the proposal to be ‘major development’ when considering paragraph 183 of the NPPF (2023). However, in The Countryside Charity (CPRE) response they have made it clear they consider the proposal to amount ‘major development’ and do not consider a clear assessment has been made on the exceptional circumstances to site the development in the National Landscape and nor do the site selection criteria give reference to landscape designations. 3.25 In any event, it is considered that the proposal is in the public interest whether it is ‘major’ development or not and as such meets the NPPF test set out in paragraph 183. This is because it will provide a suitable HWRC facility that is an essential facility for communities to dispose of waste, will deal with the existing operational and congestion issues of the existing site whilst being well related to the A148 by keeping the new site in the same broad location, which is centrally located between the settlements of Holt, Sheringham and Cromer and will help to move waste up the hierarchy in accordance with the NPPW (2014). Whilst also seeking to minimise adverse impacts on the landscape and scenic beauty of the National Landscape through proportionate mitigation to reduce the severity of the impact felt and providing a facility to ensure the future community have sufficient access to a HWRC as required by theEnvironmental Protection Act 1990 . 3.26 The applicant has provided an addendum to the Planning Statement to address paragraph 182 and 183 of the NPPF (2023) where it has been highlighted that the development is required to be located in this location but the applicant has only given limited consideration of sites that have come forward during the determination of the application due to the timings of becoming aware of the other sites. The applicant has provided limited justification as to why the land immediately west of the existing site is inappropriate, along with land that has come forward during the planning process in Stonehill Way, Cromer, but has clearly set out the selection criteria that was used and the cost implication to the public purse if the site chosen to progress with in December 2020 changed during the design process in both consultant fees and land acquisition fees in tackling paragraph 183(b) of the NPPF (2023).”
“3.36 However, it is considered that although the applicant has provided details of a Site Selection Assessment in 2017, the fact the CPA do not hold a copy of the additional 2019 assessment that brought forward 3 additional sites (all within the National Landscape) does not sufficiently demonstrate that the facility cannot be located on an alternative site that would cause less harm. However, limited justification as to the cost impacts of locating the site outside of the National Landscape has been provided in the Planning Statement Addendum and the CPA appreciate that a decision does need to be made on a site to progress the design of the new HWRC at some point and taking this decision in 2020 (sic) is considered proportionate given when the application was lodged. The applicant has also tried to address sites that have come forward during the planning application process, but with limited justification for discounting the sites other than the impact it would have on the work carried out to date.”
“3.45 The policy that deals with the proposal’s impact upon amenity in relation to the NMWLDF (2011) is namely DM12: Amenity. The policy states amenity is a key consideration for waste development and development will only be permitted where it can be demonstrated that the scale, siting and design is appropriate and there will be no unacceptable impact to local amenity. In terms of the NNLDFCS (2008) the policy concerned with amenity is EN4: Design and states proposals should not have a significantly detrimental effect on the residential amenity of nearby occupiers. 3.46 The application site is situated roughly 35m east of the boundary of the Hilltop Outdoor Centre with the sensitive receptors of the accommodation at the facility 250-350m north-west and the nearest residential properties lying 270m-435m to the northeast. The A148 is less than 20m south of the site and there are other sensitive receptors of the site with St Andrews School 700m east and Field Barn 650m south. However, these are considerably further away. 3.47 The proposed development provides a 2.5m high living acoustic fence to the north and west boundaries of the proposed site which is considered to suitably address any noise related amenity concerns on the sensitive noise receptors of Hilltop Outdoor Centre and other properties to the north. The applicant has sought to reduce the impact of the development on the sense of tranquillity, remoteness and wildness that is considered part of the special qualities of the National Landscape in relation to noise and light pollution by utilising the living acoustic fencing to two principal boundaries and the omission of external lighting from the scheme. 3.48 The District Environmental Health Officer (EHO) originally raised concerns due to a lack of information on lighting and clarifications on noise impacts. However, since the CPA confirming no lighting is proposed with the development and agreement with the applicant and CPA to impose a condition on reduced construction hours and clarification that the proposed development will be controlled by an Environmental Permit, the EHO has removed their objection to the proposal. 3.49 With regards to the actual regulation of an operation such as this, in accordance with paragraph 188 of the NPPF and the National Planning Policy for Waste, the County Planning Authority needs to focus on whether proposed development is an acceptable use of land, rather than the control of processes or emissions, and the CPA needs to be satisfied that the facility can in principle operate without causing an unacceptable impact on amenity by taking advice from the relevant regulation authority (the Environment Agency). However, it is the role of the Environmental Permit (which the facility would also require before it can operate) as issued by the Environment Agency to actually control emissions/pollutants such as noise, odour and dust through conditions, and Planning Authorities should assume this regime will operate effectively. 3.50 Therefore, the proposal is considered compliant with policies DM12 of the NMWLDF (2011), EN4 and EN13 of the NNLDFCS (2008), the objectives of section 8 of the NPPF (2023), and the NPPW (2014).”
“3.96 The issues raised relating to child protection concerns due to the proximity of the Hilltop Outdoor Centre that acts as an activity centre for children to the proposed development have been considered in relation to theHuman Rights Act 1998 and theEqualities Act 2010 and it is not considered the siting of an HWRC in this location would have an impact on Child Protection when considering discrimination. The CPA believe that there are suitable mitigation measures in place with the acoustic screening to the north and west of the site to deal with noise concerns and that any dust or odour issues would be suitably controlled by a Waste Permit by the Environment Agency when considering the football pitches at Hilltop Outdoor Centre roughly 35m west of the proposed site. The highways improvements and provision of a new HWRC will also ensure fewer vehicles will be queuing to access the HWRC resulting in improved pedestrian safety. However, it is understood that children would also be dropped of at Hilltop Outdoor Centre within the boundary of the site itself.”
“4.3 It is accepted that the design of such projects is a lengthy process. However, the CPA are not satisfied that a robust Site Selection process has taken place to meet NMWLDF (2011) Policy DM6 and NNLDFCS (2008) EN1 to allow development in the National Landscape on land that does not meet NMWLDF (2011) Policy CS6. Whilst the CPA have been provided with an assessment dating back to June 2017, this was carried out some 6 years prior to the application being lodged. The CPA would have expected a more recent assessment to have been submitted in order to fully comply with policy so we can be satisfied no land was available on sites outside of the National Landscape and/or on land meeting policy CS6. However, the CPA do consider there is sufficient public interest in providing the improved facility when considered in relation to the highways improvement works, landscape mitigation and location of the existing HWRC. Particularly given the impact that could be had on the National Landscape if a suitable facility is not provided. The CPA agree the current facility is not fit for purpose and as such a new facility would be in the public interest as if one was not provided the National Landscape could potentially suffer from increased instances of fly tipping due to the lack of an easily accessible and modern HWRC given the queuing issues with the current site and lack of vehicle access. The CPA also see the location of an HWRC as a geographical assessment to meet catchment needs given that it is a public facility and due to the extent of land the AONB covers a suitable site would have a high probability of needing to be located in the sensitive landscape.”
“42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarize the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500 , at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer's advice, the court will not interfere.”
“I received the attached response on the quarry site at East Beckham while I was away last week. I will give Robert Batt a ring shortly to follow this up. I believe the indicated target date for this HWRC relocation was for October, but I wondered how much flexibility there may be on the timescale as this seems a reasonably positive response, particularly given the existing highways access serving the quarry.”
“22. … (2) Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it. …”
“… It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it. …”
“87. It is clear from the officer's report that a large number of possible alternative sites had been considered, among them West Kent's land at Becket's Field – the Glebelands garages site – and, separately, the adjacent land owned by the Becket Trust. The report referred to the previous proposal for six affordable dwellings on the Becket Trust's land, which had been rejected for reasons including its unacceptable design and the likely effect of the development on the living conditions of local residents. The officer dismissed the possibility of a satisfactory scheme on the Becket Trust's land “in isolation” because that site might not be large enough to accommodate the required number of affordable dwellings in an acceptable scheme. 88. But Mr Strachan's main submission on this issue was based on a different concept, which was identified in Winckworth Sherwood's letters to the Council of17 July 2013 and5 September 2013 , and supported – as Winckworth Sherwood contended – by the offer of co-operation in West Kent's letter to the Becket Trust of15 November 2012 . What was suggested was a new proposal for affordable housing at Becket's Field, on a site combining land owned by West Kent with land owned by the Becket Trust. The Society's complaint was, and is, that the Council had ignored, or failed to investigate, the potential for a development of affordable housing at Becket's Field, jointly promoted by the Becket Trust and West Kent. And this suggestion was made, one must remember, in correspondence stimulated by the Council in its request for comments on the draft officer's report. 89. The evidence now submitted to the court by the Council and by West Kent does not encourage one to think that a jointly promoted development at Becket's Field would come forward if the proposal for Forge Field were rejected. I acknowledge that. It is also true that the details of such a scheme were not described by Winckworth Sherwood in their correspondence with the Council, nor did the Council ask for those details. But the alternatives were not being considered as specific proposals. Each of them was being considered, in the circumstances as they were at the time, as a site for which a suitable scheme of affordable housing might be devised. This was the basis on which Winckworth Sherwood were pressing the Council to look at the potential for a joint development at Becket's Field which would overcome the objections to the previous scheme promoted by the Becket Trust on its own. That development would involve the collaboration of two registered providers of affordable housing, and would have, it was said, an obvious advantage over the proposed development at Forge Field because it would avoid harm to the settings of listed buildings, to the conservation area, and to the AONB.”
“The definition of major development’ in this instance differs from that found in theTown and Country Planning (Development Management Procedure) (England) Order 2015 as amended, where waste development as a whole is considered to constitute major development. In this instance given that the site is essential infrastructure for the use of the local community to dispose of waste, only roughly 0.5ha in scale with a relatively low throughput of 6,000tpa, no difference in traffic movements given it is serving the same catchment as the existing facility, is located adjacent to a primary transport route, the A148 and the current operational HWRC facility (which is also located in the National Landscape), the CPA, on balance, do not consider the proposal to be ‘major development’ when considering paragraph 183 of the NPPF (2023). However, in The Countryside Charity (CPRE) response they have made it clear they consider the proposal to amount to ‘major development’ and do not consider a clear assessment has been made on the exceptional circumstances to site the development in the National Landscape and nor do the site selection criteria give reference to landscape designations.”
“183. When considering applications for development within National Parks, the Broads and Areas of Outstanding Natural Beauty, permission should be refused for major development (footnote 64) other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of: a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy; b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated. Footnote 64: For the purposes of paragraphs 182 and 183, whether a proposal is ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.”
“63. The policy requires the exercise of planning judgment. The decision-maker must consider whether there are "exceptional circumstances" justifying the granting of planning permission for the development in question, and whether granting permission would be "in the public interest". The three bullet points do not exclude other considerations relevant to those questions. The first requires the decision-maker to consider the "need for the development", including "any national considerations" – for example, the considerations of national policy for housing need and supply. The second bullet point does not refer specifically to alternative sites. It refers to the "cost" and "scope" for development "elsewhere outside the designated area", and to the possibility of meeting of the need for the development "in some other way". In many cases, this will involve the consideration of alternative sites. But the policy does not prescribe for the decision-maker how alternative sites are to be assessed in any particular case. It does not say that this exercise must relate to the whole of a local planning authority's administrative area, or to an area larger or smaller than that. This will always depend on the circumstances of the case in hand. The third bullet point requires the decision-maker to consider potential harm in the three respects referred to – again, always a matter of planning judgment.”
“149 Public sector equality duty (1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. …. (2) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) …. (3) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. …. (4) The relevant protected characteristics are— age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation. ….”
“25. Two lever arch files of authorities were placed before the court which included some thirteen cases in which relevant duties and the requirements placed on public authorities have been considered. Fortunately the principles were not significantly in dispute between the parties. I summarise the points identified, which are not, I think, different in substance from those summarised by the Judge in paragraph 32 of his judgment. (1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence[2006] 1 WLR 3213 ;[2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department[2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health[2005] EWCA Civ 154 at [26 – 27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing[2008] EWHC 2062 (Admin) at [23 – 24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 (Admin) , as follows: i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be “exercised in substance, with rigour, and with an open mind”
“175. … (6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.”
“86. Section 149 of the 2010 Act applies to a public authority when it exercises its functions (see section 149(1) ). It requires a public authority to give the equality needs which are listed in section 149 the regard which is 'due' in the particular context. It does not dictate a particular result. It does not require an elaborate structure of secondary decision making every time a public authority makes any decision which might engage the listed equality needs, however remotely. The court is not concerned with formulaic box-ticking, but with the question whether, in substance, the public authority has complied with section 149 . A public authority can comply with section 149 even if the decision maker does not refer to section 149 (see, for example, Hottak v. Southwark London Borough Council[2015] UKSC 30 ;[2016] AC 811 ).”
“10. There is ample authority on the meaning and effect of section 149 . Five points are especially relevant here. First, section 149 does not require a substantive result (see the judgment of Lord Justice Dyson in R. (on the application of Baker) v Secretary of State for Communities and Local Government[2008] EWCA Civ 141 ;[2009] PTSR 809 (at paragraph 31) ). Second, it does not prescribe a particular procedure. It does not, for example, mandate the production of an equality impact assessment at any particular moment in a process of decision-making, or indeed at all (see R. (on the application of Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 ;[2009] PTSR 1506 , at paragraph 89 ). Third, like other public law duties, it implies a duty of reasonable enquiry (see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] A.C. 1014 ). Fourth, it requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy (see the judgment of Lord Justice Pill, with which the other members of this court agreed, in R. (on the application of Bailey) v Brent London Borough Council[2011] EWCA Civ 1586 ; [2012] Eq. L.R. 168, at paragraphs 79, 81 and 82 ). And fifth, courts should not engage in an unduly legalistic investigation of the way in which a local authority has assessed the impact of a decision on the equality needs (see the judgment of Lord Justice Davis in Bailey , with which Lord Justice Richards agreed, at paragraph 102).” … “13. Both sides in this appeal referred to "the Bracking requirements". In our view it is better to refer to these propositions as "principles" rather than "requirements" – as did the Divisional Court (Lord Justice Singh and Mr Justice Swift) in its recent decision in R. (on the application of Good Law Project and Runnymede Trust) v The Prime Minister and Secretary of State for Health and Social Care[2022] EWHC 298 (Admin) (at paragraph 106) . It is also important to remember that these glosses are no substitute for the language of the statute.” … “15. Implicit in what was said in End Violence Against Women is that the statutory provisions must always be read as they are – useful as their interpretation by judges can be. The basic issue in every case should be a simple one: whether a public authority has had "due regard" to the needs identified in section 149 . As Elias L.J. said in Hurley (at paragraph 78), "… the decision maker must be clear precisely what the equality implications are … but ultimately it is for him to decide what weight they should be given in the light of all relevant factors". That observation should be qualified by the approach of this court in Bailey . The decision-maker is concerned with the obvious impacts on equality, and not with the detail of every conceivable impact.”
“The natural environment Hilltop offers plays a crucial role in supporting the development and well-being of our children with Special Educational Needs (SEN). “We see huge gains in the children’s social development, self-esteem, confidence and mutual respect and support. The Hilltop environment provides a sensory-rich setting that works in harmony with these aims to reduce stress, promote social interactions and foster a sense of calm and focus. This sense of clam [sic] and focus is crucial in the success of our visits and providing this opportunity for our children. “I am very concerned that the proximity of possible industrial activity to the very special natural environment of Hilltop, poses a significant risk to providing this opportunity for our children. Industrial operations often lead to pollution, noise, and other environmental hazards that can degrade the quality of natural spaces. Specifically, for our children, loud sudden noises and general background industrial noises significantly affect their ability to remain engaged in the learning process.”
“(2) The EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development on the following factors— (a) population and human health; (b) biodiversity, with particular attention to species and habitats protected under any law that implemented Directive 92/43/EEC2 and Directive 2009/147/EC3; (c) land, soil, water, air and climate; …”
“13. The limited nature and scope of a screening opinion was emphasised by Moore-Bick LJ in R (Bateman) v South Cambridgeshire District Council[2011] EWCA Civ 157 . He said at paragraph 20: "20. Having dealt with those points I can return to the substance of the argument, which is that the planning officer failed to demonstrate that she had considered the likely effect of the development in relation to traffic movements, the landscape and noise or, if she had, to explain why an EIA was not required in this case. When considering a submission of this kind I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term "screening opinion"." In the same case, Mummery LJ said: "40. In my judgment, the decision not to have an EIA is a significantly different kind of decision from a refusal or grant of planning permission. The reasons for a preliminary administrative decision whether or not to have an EIA do not have to satisfy the same standards of information and reasoning as would apply to a substantive decision on a planning application. The degree of "grappling" is different, more provisional and less exacting…" 14. Bateman was a case in which the Court of Appeal concluded (by a majority) that the reasons given for the negative screening opinion (which amounted to 1&12; sentences) were inadequate. However, as has been pointed out in subsequent cases, this was unsurprising on the facts, given that there was no explanation for why the expansion of a grain storage facility from 90,000 tonnes to 300,000 tonnes, and from 12 to 60 large silos, was not likely to have a significant effect on the environment. 15. As to the practical limits of any screening decision, Lindblom J (as he then was) said in Hockley v Essex County Council & Anr[2013] EWHC 4051 (Admin) : "102. There has to be a sensible limit to what a screening decision-maker is expected to do. This view is supported in the cases to which I have referred, notably, for example, in Bateman (see paragraph 24 above). Conjecture about future development on other sites that might or might not act with the development in question to produce indirect, secondary or cumulative effects is not in the screening decision-maker's remit. I do not think the precautionary approach extends to that. And when it is suggested in a claim for judicial review that a screening decision was deficient because some potential cumulative effect was left out, it is not enough for a claimant simply to point to other developments in the locality that have been or might be approved, and to leave it to the court to work out whether any aggregate effects were unlikely to be significant. Unless it is obvious that relevant and potentially significant effects on the environment have been overlooked, the court will need some objective evidence to show this was so. It will need to be satisfied that the authority responsible for the screening decision was aware, or ought to have been, of the potential cumulative effects; that the screening opinion could not reasonably have been negative if those potential effects had been considered; and that this was, or should have been, apparent to the authority at the time." 16. Other authorities have demonstrated that a screening direction is a preliminary assessment rather than an examination paper expected to contain a record of each and every issue and each and every conclusion: see Mackman v SSCLG[2013] EWHC 3396 , at paragraph 65 – 72. In the same case in the Court of Appeal ([2015] EWCA Civ 716 , Sullivan LJ said: "18. The majority of the Court of Appeal in Bateman concluded that the reasons given for the negative screening opinion in that case were inadequate. Mr. Mackenzie submitted that the reasons given in Bateman were less inadequate than the reasons given in the screening opinion as the present case. As in Bateman , there was no clear statement of Mrs. Denmark's reasons for her conclusion that the proposed development was not likely to have significant environmental effects. The "reasons" amounted to no more than a bare conclusion. 19. While there is some force in this submission, the circumstances of this case are very different from those in Bateman . In Bateman the screening opinion had concluded (unsurprisingly) that the main impacts of a proposal to expand a grain storage facility with a capacity of 90,000 tons in 12 silos to a capacity of 300,000 tons in 60 additional silos each about 18 metres high and 23 metres in diameter, were likely to be "increase in traffic movements, landscape impact and noise disturbance to local residents" (see paragraph 6 of the judgment of Moore-Bick LJ). In those circumstances, an explanation as to why those impacts on the environment were not likely to be significant was called for, and was not contained in the screening opinion. 20. In paragraph 78 of her judgment Lang J correctly said that the level of detail in a screening opinion would depend upon the complexity of the issues to be considered in the particular case, so that the test was whether the reasons were adequate for this particular application. She accepted that the reasons were brief, but concluded that they were not inadequate "in the circumstances of this particular case which was not complex or borderline." In Mackman , the challenge to the screening opinion was dismissed. I note in passing that Sullivan LJ said at paragraph 9 that it had been rightly accepted in that case "that the mere fact that cumulative impact had not been expressly referred to in the screening opinion did not mean that it had not been taken into account."”