Horner v Lancashire County Council & Anor

LORD JUSTICE LLOYD: This is the oral renewal of an application for permission to appeal which was considered on paper by Buxton LJ. He granted permission to appeal on one of the grounds of appeal and refused permission on the others. The application is now sought to be renewed on one of those points on which he refused permission. The appeal is from an order of Ouseley J of 19 July 2005, by which he refused an application for judicial review in relation to a proposed extension to a cement works involving new apparatus, to use a very general and probably quite inappropriate word, designed to enable the cement works to operate with a different kind of fuel. The question at the heart of the case is whether, before that is permitted, it is necessary for there to be an Environmental Impact Assessment.

The Lancashire County Council took the view that it was not necessary. The judge held that they were right. The applicant, who farms land nearby, is worried about the risks arising from the use of this new fuel and seeks to establish that an Environmental Impact Assessment was necessary. The point on which Mr Tromans seeks permission to appeal this morning, to add to the point already open by virtue of Buxton LJ’s order, is concerned with the interpretation of paragraph 13(a) of schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Those Regulations specify the cases in which an Environmental Impact Assessment is necessary. They include development within schedule 2, which is likely to have significant effect on the environment by virtue of factors such as its nature, size and location.

Development within schedule 2 is development of a description mentioned in column 1 of the table in schedule 2, where so far as relevant to the present case is concerned, any applicable threshold or criterion in the corresponding part of column 2 of that table is respectively exceeded or met in relation to that development. If one then goes to schedule 2, there are some definitions to start with, which include an important definition of “floorspace” as meaning the floorspace in a building or buildings. One then comes to the table and there are very many entries in the table, two of which only are relevant for present purposes. In group five, headed “Mineral Industry” and (b), column 1, it says “installations for the manufacture of cement” and column 2 says against that “the area of new floorspace exceeds 1,000 square metres”.

Going on to the end of schedule 2, heading 13(a) is as follows:

In column 2 against that the point is made that the thresholds and criteria in the corresponding part of column 2 apply to the change or extension and not to the development as changed or extended. The view taken by the learned judge was that the threshold requirement that the new floorspace exceeds 1,000 square metres applied to the particular project, the proposed development, and that the storage silo which would be part of the development was a structure which could be said to have floorspace, but the floorspace would not exceed 1,000 square metres and that accordingly the threshold was not exceeded and the project did not fall within the requirements in respect of an Environmental Impact Assessment. One can see why he came to that view. On the face of it, the applicable threshold is the requirement that the area of new floorspace exceeds 1,000 square metres and it is not necessarily an answer to that to say, “Well, you simply cannot speak of a silo having floorspace”. The judge recognised that one would not normally think of a silo as having floorspace, or at any rate as having floorspace in a building, but he considered that the threshold did nevertheless apply.

Buxton LJ considered that the judge was correct and discounted the argument that Mr Tromans seeks to maintain, on the basis that the reading for which he contends is not permitted by the national legislation and cannot be rendered legitimate by recourse to the Directive.

Mr Tromans has shown me the case of Edwards v Cemex[2006] EWCA Civ 877 to which Buxton LJ referred and he shows me the way in which he would seek to argue that the Regulations have to be construed in such a way as to further the purpose of the Directive. In support of that, he has pointed out to me a number of cases which could be regarded as highly anomalous on the judge’s reading of the Regulations in which the Environmental Impact Assessment would not be required.

In the light of Buxton LJ’s reasoning and that of the judge, I have some hesitation in granting permission to appeal, but nevertheless on balance in the light of the fact that there is a point on which permission to appeal has been given, and in the light of the potential anomalies to which Mr Tromans has referred, it seems to me that this is a case in which there are sufficient grounds for allowing an appeal to proceed on the issue arising in relation to the interpretation of paragraph 13(a) of the schedule 2.

Accordingly, I propose to grant permission to appeal on that point in addition to the one on which Buxton LJ has already given permission.