Horner, R (on the application of) v Lancashire County Council & Anor

This is an appeal by Mrs Mary Violet Horner against the order of Ouseley J of 19^th July 2005 upholding the grant on 19^th January 2004 by Lancashire County Council (“the Council”) to Castle Cement Limited (“Castle”) of planning permission for:

“... erection of machinery to handle animal waste derived fuel (AWDF) comprising … tanker off loading area, storage silo, and extraction system to feed AWDF into the kiln [Kiln 7] Castle Cement Ribblesdale Works, Clitheroe.”

Condition 2 of the permission required the development to be undertaken in accordance with the planning application and Castle’s supporting statement and submitted plans. The planning application indicated that the site area involved was 1000m², a clear reference to a much larger area than that referable to the proposed development.

Mrs Horner owns and runs two livestock farms, one close to Castle’s cement works and the other some three miles distant. She is concerned about contamination of her pasture land by airborne emissions of animal waste derivatives from the works, including and in particular from accidents such as “blowouts” and emissions from low-level sources, for example, in the discharge of AWDF into the silo. A particular concern is that, as a result of any such emission, her livestock may be subjected to restriction or slaughter under the Transmissible Spongiform Encephalopathies Regulations 2002 (“the TSE Regulations”). (Footnote: ¹) Her complaints material to this appeal are that the Council, in considering the planning application, did not address or assess those risks:

As to an EIA, the Council did not require one or undertake a screening process to establish whether one was required. As to BPEO, the Council did not expressly consider its principles.

In addition to planning control, and through it, the EIA regime, the use of fuels in Kiln 7 was already subject to control by the Environment Agency under:

In September 2004, some eight months after the grant of the planning permission, Castle obtained from the Environment Agency, after a substantial public consultation exercise, consent to a variation of its existing PPC permit to enable it to burn AWDF in Kiln 7 for a six month trial period. If such a trial were to succeed in the sense of meeting defined critical success factors and if no other issues arose, it was contemplated that, under the PPC regime, the permanent use of AWDF would be permitted without further application. The trial was a success, and in September 2006 the Environment Agency, in a detailed assessment and decision, concluded that the development would produce “no changes in the overall environmental effects” of the development and that it represented “an overall environmental benefit in terms of landfill requirements”.

Mrs Horner’s challenge to the January 2004 planning permission giving rise to all this is that, regardless of the apparent acceptability of the proposal to burn AWDF in Kiln 7 under the PPC regime, having regard to the risks to which it might expose her livestock, it had required as part of the Council’s planning control consideration, an EIA or, at least a formal screening as to the need for one, under regulations 7(1) and 5(4) of the EIA Regulations. As I have said, neither was undertaken here.

Regulation 2(1) of the EIA Regulations provides, in its definition of “EIA development” when read with regulation 7(1), where it appears to a planning authority that an application for planning permission is an “EIA development”, either because:

The Judge, in upholding the planning permission, held, so far as material to the issues in this appeal, that:

The issue is whether the Judge erred as a matter of law or of fact and degree in applying the law in holding that the proposed development included “floorspace” within the following description of development in Class 13(a), read with Class 5(b) of Schedule 2 to the EIA Regulations, thereby excluding it from the definition of “EIA development” in regulation 2(1) because its floorspace did not exceed the applicable threshold of 1000m². Class 5(b) is “installations for the manufacture of cement” where “[t]he area of new floorspace exceeds 1,000m²”. Class 13(a), so far as material, is “[a]ny change to or extension of development of a description” in [Class 5(b)], where “the change or extension may have significant adverse effects on the environment”, and the area of the new floorspace involved in the change or extension exceeds 1,000m².

Determination of this issue turns on the interpretation of the EIA Regulations and their application to the facts of the case in the light of the EIA Directive, having regard, in particular, to the margin of appreciation afforded to Member States in respect of Schedule 2 projects and to the now familiar principle that interpretation of national measures should, so far as possible, have regard to the objectives of EU Directives and principles; see Marleasing SA v La Comercial International de Alimentacion SA (Case C – 106/89) [1990] ECR I - 4135 and Commissioner for HM Revenue & Customs v IDT Card Services Ireland [2006] EWCA Civ 29.

The House of Lords, in Berkeley v Secretary of State for the Environment [2001] EWCA Civ 1012, and this Court, in Edwards v Environment Agency [2006] EWCA Civ 877; [2007] Env LR 126, at paras 58 and 60 proceeded on the basis that the EIA Directive has been properly transposed through this country’s system of planning control coupled with the EIA Regulations. Put another way, our system of planning control provides the appropriate procedures for obtaining and regulating development aspects of environmental impact that may engage the EIA Directive. The parties are also agreed that, in respect of the particular issues under appeal in this case, the EIA Regulations properly transpose the EIA Directive.

The Directive, in Article 1, sets out its objective as follows:

“… the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.”

Article 2.1 imposes the following fundamental obligation on Member States:

“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.” [My italics]

Before continuing, I should say something to explain my italics in that fundamental obligation. It is aimed at the prevention or control of projects, which, unless prevented or adequately controlled, may be identified by an evaluative process - an EIA - as likely to have significant effects on the environment. That evaluative process is provided for by Article 4 of, and Annexes I to III to, the Directive, which have their counterparts in the EIA Regulations in the definition and description of “EIA development” respectively in Regulation 2(1) and Schedules I to III.

For some projects, those with obvious potential for environmental harm provided for in Article 4.1/Regulation 2(1) and identified in Annex I/Schedule 1, an EIA is always required. For other less obviously potentially environmentally harmful projects provided for in Article 4.2/Regulation 2(1) and Annex II/Schedule 2, Member States are required to determine by one or other of two means, or both if they wish, whether a project should be subjected to an EIA. Annex II/Schedule 2, in addition to identifying a number of such projects, provides one of a general nature for any change or extension of an Annex 1/Schedule 1 or Annex II/Schedule 2 project “which may have significant adverse effects on the environment”.

“4.2

… for projects listed in Annex II, the Member States shall determine through:

(a)

a case by case examination, or

(b)

thresholds or criteria set by the Member State

Whether the project shall be made subject to an assessment …”

Article 4 continues in 4.2 and 4.3:

“4.2

Member States may decide to apply both procedures referred to in (a) and (b)

4.3

When a case–by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.”

Annex III sets out predictable factors to be taken into account when considering the characteristics, location and potential impacts of projects.

The Directive thus contemplates its application by Member States setting their own procedures for determination of the need for an EIA either by way of case-by-case examination or thresholds or criteria or both, depending on the nature of the proposal. Although, as I have said, there is no challenge to the adequacy of the transposition of the Directive’s provisions material to the issues in this appeal, the following observations of Schiemann LJ in the Court of Appeal in Berkeley v Secretary of State for the Environment [2001] EWCA Civ 1012, at para 47, are of help on their effect as transposed:

“When considering whether the transposition is Community Law compliant the following is … clear:

1.

The … directive is not intended to prevent all development which is likely to have a significant effect on the environment. It is intended to improve the quality of the decision making process in a group of cases. If the proposed development falls within that group then the environmental impact assessment procedures are to be gone through before permission is granted.

2.

In respect of development falling within Annex I the Community has decided that the nature of the development itself is such that environmental impact procedures must always be gone through before permission is granted.

3.

In relation to development falling within Annex II the Community has recognised that in some cases it will be desirable to insist that EIA procedures be gone through but that this will not be desirable in all cases.

4.

In relation to Annex II development the Community has, ‘in accordance with the subsidiarity principle’ … in principle left it to Member States to identify the parameters of the group of development permission for which cannot be granted without an EIA. …”

The EIA Regulations, in conjunction with the United Kingdom legislative scheme for planning control, closely mirror the EIA Directive’s two tier system for evaluation of potentially harmful environmental effects of development proposals. They do this in Regulations 2(1) and 3 by prohibiting the grant of planning permission unless EIA procedures are followed for every application of a kind described in Schedule 1 to the Regulations, and for every application of a kind described in Schedule 2, but only that which is

“likely to have significant effects on the environment by virtue of factors such as its nature, size or location”.

Thus, the question whether development is Schedule 2 development calls for some environmental evaluation as well as identification. Regulation 2(1) defines “Schedule 2 development” as development … of a description mentioned in Column 1 of the table in Schedule 2 where-

“(a)

any part of the development is to be carried out in a sensitive area; or

(b)

any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development.”

The scheme of evaluation is provided for in Regulation 4, 5 and 7. In the case of consideration by the relevant planning authority, regulation 4, paragraphs (1) and (2), require determination whether the proposal is for an EIA development within Schedule 2 by one of two means, either by the submission by the applicant of an environmental statement or the adoption by it of “a screening opinion” as to whether it may be EIA development so as to require an EIA.

As noted in Circular 02/99, “Environmental Impact Assessment”, most of the types of development listed in Schedule 2, have “an inherent scale”, and the applicable thresholds or other criteria are equally applicable to Class 13(a) changes or extensions. Schedule 2 type developments outside a sensitive area falling below those thresholds or meeting none of the criteria do not require an EIA. However, where, in particular cases, they might nevertheless give rise to significant environmental effects, Regulation 4, paragraphs (7) and (8), provide for a case-by-case treatment by the Secretary of State. Where the proposed development is not in a sensitive area or a specified threshold is not exceeded or criteria are not met, he may make a screening direction on request or of his own volition; or the local planning authority may, in any particular case, opt for a case-by-case approach by referring the matter to him for a direction under regulation 4(3) or (8) that it is EIA development:

“4(7) The Secretary of State may make a screening direction irrespective of whether he has received a request to do so.

4(8) The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of ‘Schedule 2 development’ is satisfied in relation to that development”

In this case no request was made by anyone to the Secretary of State to exercise his powers under regulation 4, paragraph (7) or (8), and there is no challenge in the proceedings in respect of the Council’s failure to make any such request.

The EIA Regulations do not expressly impose an obligation on a local planning authority or the Secretary State to require an EIA if of the view, following a screening exercise, that one is required, but that is their effect in the light of the provisions of the EIA Directive. In Berkeley, which concerned a grant of permission by the Secretary of State, Lord Hoffmann, with the agreement of their Lordships, explained, at 614, the mechanism, which, as held by Dyson LJ in R (on the application of Jones) v Mansfield DC [2003] EWCA Civ 1408. [2004] Env LR 21, at para 16, applies also to decisions of a local planning authority:

“The Regulations do not expressly impose upon either the local planning authority or the Secretary of State a general obligation to consider whether an application is a Schedule 2 application or not. Regulation 5 requires the planning authority to express an opinion only if so requested by the applicant and regulation 10 requires the Secretary of State to notify the applicant that an environmental statement is required if it ‘appears’ to him that the application is a Schedule 1 or 2 application, without imposing an express obligation to consider the matter. The prohibition upon the grant of planning permissions without an EIA in regulation 4(2) applies expressly only to ‘any Schedule 1 or Schedule application’. But, since the question of whether an application is a Schedule 2 is primarily entrusted by regulation 2(2) to the Secretary of State, it is not difficult, in order to make regulation 4(2) effective, to imply into that regulation an obligation upon the Secretary of State to consider the matter. So to construe the regulation would be in accordance with the obligation of a member state under the principle in Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135, para 8, to interpret domestic law ‘as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter.’”

Thus, the EIA Regulations adopt the “dual approach” of the EIA Directive. They do so by requiring a screening opinion or direction of a case-by-case approach and/or thresholds or criteria in three circumstances, first, where any part of a proposed development is located in “a sensitive area” as widely defined in regulation 2(1), secondly, by specifying thresholds or criteria, and, thirdly, by direction of the Secretary of State on his own volition or on request from the decision-maker pursuant to regulations 4(7) and/or 4(8). The Regulations do not otherwise in terms enable a local planning authority to opt for a case-by-case approach where a threshold or criteria are or are specified.

Whether the Council should have undertaken a screening process in this case to determine whether an EIA was required, turns on the question whether, in the words of the Class 13(a) of Schedule 2 to, coupled with definitions in regulation 2(1) of “EIA development” and “Schedule 2 development”, it is deemed by exceeding the floorspace threshold that that might “be likely to have significant effects on the environment by virtue of factors such as its nature, size or location”.

“Floorspace” is defined in Schedule 2, paragraph 1, as “the floorspace in a building or buildings”. “Building” is broadly defined by section 336(1) of the Town and Country Planning Act 1990 (“the 1990 Act”) as “any structure or erection, and any part of a building so defined”. The specified threshold of floorspace in excess of 1,000m² is, as stated in Class 13(a) applicable to the change or extension, not to the over-all development as proposed to be changed or extended. It should be noted that the provision is clearly intended to reflect the fact that there are different types of Schedule 2 development, some involving change, some extension, some both; it does not distinguish between changes or extensions in the application to them of the spatial threshold of 1,000m².

In this case (Footnote: ³) the Court is not concerned with the basis upon which it can intervene in a planning judgment on the issue whether there is a possibility or likelihood of significant effects on the environment in an otherwise clear Schedule 2 development, namely only on the basis of Wednesbury irrationality. It is concerned with the correctness of the Judge’s ruling of law as to whether the development proposal for the installation of a silo and associated pipework was within the contemplation of Schedule 2 at all by reference to a threshold based on an area of “floorspace”.

As I have said, the Judge held that the proposal, which he regarded as an “extension” rather than a “change” within Class 13(a), included “floorspace”, but floorspace that did not exceed the threshold of 1,000m². Alternatively, he held that, if the proposal did not include “floorspace”, the qualifying threshold could not be exceeded, so it was not caught by Class 13(a) at all, because it only engaged an extension with floorspace that exceeded the space threshold.

The Judge held, by reference to the site area of 1,000m² given in the planning application, that the proposed floor space for the new installation did not exceed 1,000m² and, on that account, was not caught by the threshold requirement in Class 13(a) – the only candidate in the Schedule for consideration for adoption of a screening opinion. In so holding, he rejected a submission by Mr Stephen Tromans, on behalf of Mrs Horner, that the proposed development, by its very nature, had no “floorspace” within the contemplation of the Regulations and, therefore no qualifying threshold to be exceeded within Schedule 2:

“60.

… The language of the application itself and the surrounding facts show the proposal or project to be part of the cement manufacturing process. It is a storage and feed system for a particular type of fuel for the kiln and its calciner. It has no freestanding use, purpose or effect. It is integral to the manufacture of cement. I would have thought it obvious that it was a change or extension to a manufactory; it is within that category by its description, function or purpose and effect. There is no qualification to that class such that only manufacturing parts of the installation are included but, in any event, the storage and feeding of fuel to the calciner and kiln are necessary parts of the process immediately associated with cement manufacture.

61.

… it is now plain, subject to any special meaning given to ‘floorspace’, that … [the threshold requirement of 1000m²] is not exceeded. The site area of the extension is given as 1000 square metres in the application. That does not exceed a threshold of 1000m². It is evident that the floorspace of the buildings could not possibly have exceeded such a threshold. …

62.

‘Floorspace’ is defined in the EIA Regulations as ‘the floorspace in a building or buildings’. I appreciate that ‘floorspace’ may not be a word commonly or readily applied to a storage silo and pipework but I do not believe that storage buildings do not have a floorspace. It must have been obvious to the draftsman of the Regulations, in the context of a cement manufactory and extensions to it, that many developments which fall within that class would not have a form to which a conventional floorspace could readily be attributed. Yet ‘floorspace’ is the chosen word for the this purpose, and it stands in contrast to the language found elsewhere in the Schedule of ‘area of works’ or area of the ‘development’, or of “buildings’. These phrases are applied to a variety of developments and installations. The word ‘floorspace’ is used in respect of many developments which would include structures which would not have a conventional floorspace. This cannot be mere carelessness in draftsmanship.

63.

If Mr Tromans’ premise that there is no floorspace is correct, which I have already said it is not, his conclusion that the exclusionary effect of the threshold is bypassed simply does not follow. Indeed it is the reverse which would be the case. If the project has no floorspace then the qualifying threshold simply cannot be exceeded. Alternatively, the project is not within Schedule 2 class 13(a) at all, because, on Mr Tromans’ argument, that clearly envisages an extension which does have an ascertainable floorspace. Again the variability of the ways in which the qualifying size thresholds in Schedule 2 are described supports that alternative proposition.”

As I have indicated, the Judge’s view was that, if, the “floorspace” threshold had been exceeded, there should have been an EIA screening. He gave good reasons for that view, in paragraphs 65 – 67, and I need not rehearse them. At paragraphs 68 and 123 (see paragraph 82 below) he expressed a contingent view that, if he had found the “floorspace” threshold to be inapplicable, he would have been minded to exercise his discretion against the grant of relief.

In considering the submissions on the highly focused and semantic question of what in law constitutes “floorspace” within the meaning of these provisions in the EIA Regulations, and the significance of its presence or absence in the Castle proposal, I should remind myself of what this is all about. It is about the EIA Directive’s requirement as transposed by the EIA Regulation of a screening opinion where a development proposal is “likely to have significant effects on the environment by virtue of factors, such as its nature, size or location”.

Mr Tromans has submitted, as he did to the Judge, that:

Mr Tromans prefaced both submissions with the well-known Marleasing principle, to which I have referred, of, as far as possible, interpreting domestic legislation in accordance with the wording and purpose of an applicable EU Directive. If necessary, the Court should go beyond the natural meaning of the domestic wording, while accepting the limitation that that exercise is one of interpretation, as explained by the House of Lords in the human rights context in Ghaidan v Godin-Mendoza (2004) UKHL 30, at paras 86 -93, and by this Court in the EU context in Commissioner for HM Revenue & Customs v IDT Card Services Ireland [2006] EWCA Civ 29, at para 82. As Mr Tromans reminded the Court, this involves a two-stage approach, first, consideration of the meaning of the Directive, and, second, interpretation of the Regulations on a conforming basis. As to the meaning of the Directive, he referred the Court to its breadth and rigour as noted by this Court in Edwards, at paras 27 and 38, and in R (Catt) v Brighton & Hove City Council [2007] EWCA Civ 298, at para 26, namely so as to require an EIA unless a proposal would be regarded as unlikely, on the available information short of an assessment, to have significant adverse effects on the environment.

As to the first of Mr Tromans’ submissions, namely that there was no “floorspace” in this proposal to which the Class 13(a) threshold could be applied, he pointed to the lack of any reference in the planning application to any “floorspace” for the silo and associated pipe-work, only to a cubic capacity of 400 m². And he submitted, by reference to a number of comparable references elsewhere in Schedule 2 to the EIA Regulations, that in this context, as a matter of law, it could only mean a “conventional” floorspace within a structure that would commonly be recognised as a building, not, as here, the base of, or an enclosed servicing area underneath, a silo.

Alternatively, Mr Tromans submitted that, if “floorspace” as used in Class 13(a) is not confined to floorspace in a building in the conventional sense, the 1,000m² threshold is not apt for the nature of the Schedule 2 development in question, whether regarded as a “change” to, or an “extension” of, an installation for the manufacture of cement. Article 1(2), he submitted, provided a broad definition of “project” for this purpose, namely “the execution of construction works or of other installations or schemes”, a control plainly not limited to “works” or “schemes” involving the creation of “floorspace”. He maintained that the provision in Class 13(a), which corresponds with paragraph 13 to Annex II to the Directive, is intended to catch both changes and extensions to existing projects, and that a change, whether or not it amounts to a physical extension, may nevertheless have significant adverse environmental effects, as recognised by the ECJ in Kraaijeveld and by this Court in Edwards, at para 38. If, as he submitted, contrary to the Judge’s view, the proposal was of change, not of extension, the Judge wrongly considered the “floorspace” threshold to be applicable to the proposal because, in doing so, he so narrowed the scope of the Regulation so as to remove the broad scope of environmental control envisaged by the Directive.

Mr Tromans pointed out that there may be changes falling within Class 13(a) because (a) they involve operational development or a material change in the use of the land that may, as contemplated by Articles 1 and 2.1 of the Directive and the definition of “EIA development” in regulation 2(1) of the Regulations, have significant adverse effects on the environment regardless of their size. In such a circumstance, he invited the Court to interpret the Regulations in such a way as to require a planning authority to disregard the floorspace threshold in the Regulations, and by way of default, adopt a case-by-case consideration of the need for an EIA. Otherwise, he maintained, a Member State, by setting inappropriate thresholds, could escape its obligation to ensure that projects likely to have significant adverse environmental effects by virtue of their nature, size or location are subject to an EIA, a device condemned by the ECJ in Kraaijeveld, at paras 50-53 and in Commission v Ireland [1999] ECR I-5901, at paras 64 – 67 and 72, and by this Court in Berkeley, at para 47.

Although Mr Tromans disclaimed any suggestion that the EIA Regulations in the imposition in Class 13(a) of a sole criterion of size did not properly transpose the Directive, he suggested that the threshold, though expressed as one of size, should be treated as inapplicable to cases in which it is not apt for the change or extension proposed. Only by such an approach, he submitted, could the Court properly construe the provision in accordance with the Marleasing principle noted by Lord Hoffmann in Berkeley, at 615-616 “to interpret domestic law ‘so far as possible, in the light of the wording and purpose of the Directive in order to achieve the result pursued by the latter’”.

In suggesting that “default” interpretation Mr Tromans disagreed with the suggestion of Miss Frances Patterson QC, for the Council, that inapplicability to individual proposals of thresholds or criteria in Schedule 2 to the EIA Regulations could be met, consistently with the Directive’s objective, by recourse to the Secretary of State’s power under regulation 4(8) of the Regulations to direct that they should be treated as EIA development. He suggested that that was only a residual power given to the Secretary of State to override the prescribed schedules or criteria in particular cases and of little help on the over-all question of interpretation, which should be one that gives effect to the Directive’s objectives. Effectiveness, he submitted, would be best ensured by an interpretation that would put the onus on a local planning authority to consider the potential effects of a change to a project as part of its own screening process rather than obliging it to consider whether to refer the matter to the Secretary of State for possible direction, an exercise akin to screening.

In short, Mr Tromans maintained that the Council, when considering Castle’s application for planning permission, should, pursuant to Class 13(a) of Schedule 2 and the definition of “EIA development” in regulation 2(1), have considered by a screening process pursuant to regulations 7(1) and 5(4) whether the putative EIA development could have any significant adverse effect on the environment.

Miss Patterson, whose submissions were adopted by Mr James Findlay for Castle, supported the Judge’s ruling that the proposal included “floorspace”, in particular, his conclusion that it must have been obvious to the draftsman of the EIA Regulations that, in the context of a cement installation and extensions to them, many developments would not have a form to which “conventional” floorspace could readily be attributed. Such an interpretation, Mrs Patterson commented, was of a piece with the broad definition of “building” in the 1990 Act, as including “any structure or erection …”. She also drew attention to the word “any” in the reference in Class 13(a) of “[a]ny change to or extension of development” of such an installation, and submitted that it was plain that the spatial threshold was intended to apply to all types of development within that class irrespective of whether they have floorspace in a conventional sense. She submitted that the provision did not distinguish between “conventional” and other floorspace and that, as a matter of fact and common-sense, there would be no reason to do so, say, between the base of a storage tank or silo and that of other storage structures, such as warehouses with “conventional” floorspace.

As to the principle of interpreting domestic legislation, so far as possible, in accordance with the wording and purpose of an applicable EU Directive, if necessary, by going beyond the natural meaning of the domestic wording, Miss Patterson reminded the Court of the limitations identified by the House of Lords in Ghaidan v Godin-Mendoza, at paras 86 -93, and by this Court in IDT Card Services, at paras 82, 85 and 89. She stressed that the obligation is to interpret national law in conformity with a Directive “so far as possible”, not to depart from a fundamental feature or principle of the domestic legislation. In this case, she submitted that Mr Tromans’ suggested introduction to the Regulations of a “default” procedure of requiring a local planning authority to adopt a case-by-case approach wherever it considers a Schedule 2 threshold or criterion inappropriate to the circumstances of the case would go beyond the Ghaidan and IDT boundaries, since:

There are two issues for the Court: first, whether the Council’s and the Judge’s interpretation of the meaning of “floorspace” in Class 13(a) was correct as a matter of law; secondly, correct or not, whether, as an exercise of EU compliant interpretation, the Council should have should have disregarded it and, by way of default, have undertaken a screening exercise.

Given the lawful transposition of the Directive, the meaning of “floorspace” and its relevance or irrelevance as a planning criterion, such as the size threshold prescribed in Class 13(a) of Schedule 2 to the Regulations, are matters of law. But their application to the facts of any case is one of fact and degree susceptible to challenge on conventional public law grounds, as the Judge acknowledged in paragraphs 55 and 56 of his judgment, correctly applying the analysis of Buxton LJ in R (Goodman) v Lewisham BC & the Big Yellow Property Company Ltd [2003] EWCA Civ 140, para 8. Given the wide variety of Schedule 1 and Schedule 2 developments to which a Class 13(a) change or extension provision applies, the meaning of “fIoorspace” should, in my view, be interpreted as widely as possible to achieve the fundamental objective of Articles 1 and 2.1 of the EIA Directive, whether they have “conventional” floorspace or not, of protecting the environment from significant adverse effects. Setting of thresholds for such a criterion of size must necessarily be a broad rule of thumb if the dual system of setting procedures envisaged by the Directive is to be effective administratively. The rationale, in relation to large installations and changes to or extensions of them, is, no doubt, the bigger they are, the more likely they are to require consideration of potential adverse environmental effects.

However, the “floorspace” threshold in play here does not seem to me to require any other particularly EU sympathetic exercise of interpretation or application so as, say, to allow for its disregard in individual cases where the threshold is not exceeded but it is considered that some other unspecified criterion should be applied. The definitions in Schedule 2, paragraph 1 and section 336(1) of the 1990 Act of “floorspace” and “building” respectively, indicate that the range of meaning of “floorspace” is wide enough to be a marker of scale “in any structure or erection” or part thereof. And, given the many forms of development in Schedules 1 and 2 to which the draftsman has applied a “floorspace” threshold, that threshold as applied by Class 13(a) is equally not confined to “conventional” floorspace. I am also of the view that the Judge’s application of that broader meaning to the measurable base or floor area of the silo here was well within the range of reasonable decisions open to him, and is, thus, not judicially reviewable as irrational or otherwise unlawful.

The more important question, including whether it is answerable at all in these proceedings, is whether size of “floorspace” alone was an apt criterion on which the Council could determine that this particular development proposal was not a Schedule 2 EIA development without first undertaking a screening exercise. I put it in that way because, as I have said more than once, it is not and has not been suggested in these proceedings that Class 13(a) does not adequately in its context transpose the Directive.

What is sought on behalf of Mrs Horner is a ruling that, whatever the meaning of “floorspace” in the context of Class 13(a), it should be disregarded in the circumstances of this case and replaced, as a default mechanism, with an obligation on the Council to undertake an individual evaluation as to the need for an EIA. A logical extension of such an argument would be to apply the same default mechanism to every case where a proposed development has “conventional” floorspace even where it falls below the relevant threshold. As Miss Patterson commented, the practical outcome would be to require a screening opinion in almost every case as to whether floorspace size is an apt means of considering whether an EIA is required – a requirement that, if given general application to Schedule 2 developments and to changes or extensions to Schedule 1 and 2 developments, would fundamentally undermine the structure of the Regulations and would impose a great strain on local planning authorities’ resources. This would also leave authorities with no clear or reasonably consistent set of criteria against which to judge potentially environmentally sensitive development. It would, as the ECJ indicated in Kraaijeveld, at para 49, deprive Article 4.2 of all point:

“The interpretation put forward by the Commission, namely that the existence of specifications, criteria and thresholds does not remove the need for an actual examination of each project in order to verify that it fulfils the criteria of Article 2(1) would deprive Article 4(2) of any point. A Member State would have no interest in fixing specifications, thresholds and criteria if, in any case, every project had to undergo an individual examination with respect to the criteria in Article 2(1).”

However, as I have noted, the Regulations do not expressly provide for such a mechanism. Nor, in my view, even by adventurous interpretative treatment, could they sensibly be regarded as doing so impliedly. On the contrary, any such purported interpretation would defeat – would not go with – “the grain” of the Regulations in requiring all Schedule 2 developments to be governed by its thresholds or other criteria, so as, in general, to avoid case-by-case evaluation. The only possible challenge would be as to the transposition of the Directive in this respect, a challenge that could only succeed, as the ECJ explained in Kraaijeveld, at paras 50 – 53, on the basis of an over-all assessment of projects of like nature.

In addition, the Regulations, by subjecting the threshold approach in Schedule 2 to exceptions for “any … development carried out in a sensitive area” as defined in regulation 2(1) and the regulation 4(8) “call-in” power of the Secretary of State, have gone some way to provide, where considered necessary, the alternative of a case-by-case approach envisaged by the Directive. The scheme of Regulations is, therefore, that a proposed development falls to be judged in the first instance against the specified threshold or other criteria. In the second instance, where the threshold or other criteria are not exceeded or met or are not apt for the individual proposal, a case-by-case procedure is available in those forms. In my view, therefore, there is no basis, as an exercise in interpretation, for introducing a wider case-by-case approach than already provided to meet any perceived lack of appropriateness or adequacy of the Article 13(a) size threshold to the potential of the proposed development for environmental harm. It follows that, in my view, it is not open to Mrs Horner in these proceedings to seek to go behind the regulatory scheme.

The second ground of appeal, as limited by Buxton LJ when granting permission to appeal, is that if, contrary to the Judge’s ruling the Council erred in law in failing to give proper consideration to the principles of BPEO (see paragraph 3 ii) above), it was relevant to his decision to refuse relief that the Council would have made the same decision whether or not it had given proper consideration to those principles.

The concept of BPEO is derived from the 12^th Report of the Royal Commission on Environmental Pollution, in which it is defined as follows:

“… the outcome of a systematic and consultative decision-making process which emphasises the protection and conservation of the environment across land, air and water. The BPEO procedure establishes, for a given set of objectives, the option that provides the most benefits or the least damage to the environment as a whole, at acceptable cost, in the long term as well as in the short term.”

Article 3 of the Waste Framework Directive specifies measures for encouraging the prevention or reduction of waste and its harmfulness, its recovery and its use. Article 4 provides that Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods that harm the environment. Article 5 requires them to take appropriate measures to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. To achieve all those objectives, Article 7 requires competent authorities, as designated by Member States, to draw up waste management plans. Article 7, as substituted in 1999 by Council Directive 91/1/156/EEC, was incorporated into our law by section 44A of the Environmental Protection Act 1990, which required the Secretary of State to prepare a strategy setting out his policies for attaining those objectives.

The objectives are set out in the 1994 Waste Regulations, regulation 2(1) of which provided that “… the competent authorities shall discharge their specified functions, insofar as they relate to the recovery or disposal of waste [in line (Footnote: ⁴)] with the relevant objectives”.

Paragraph 4(1) of Schedule 4 to the 1994 Waste Regulations includes among the duties of the Council, as a planning authority:

“(a)

ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment …

(b)

implementing, so far as material, any plan made under the plan-making provisions.”

As I have indicated, the plans in this instance are the National Waste Strategy 2000 and the Council’s own Minerals and Waste Local Plan.

The National Waste Strategy 2000, in Chapter 4, Part 1, paras 3.2 – 3.10 and 4.4 - 4.5, identifies BPEO as the key principle underpinning sustainable waste management, and sets out two supporting principles. The first is the “waste hierarchy”, which lists in the following order of priority: reduction, re-use, recovery by recycling, composting or energy recovery, and waste disposal, the objective being to manage, that is, deal with, waste as high up that hierarchy as is the best practicable environmental option. The second is the “proximity principle”, namely that waste should be dealt with as close as possible to where it is produced.

The written report of the relevant planning officer, Mr Jonathan Haine, to the Development Control Committee of the Council, when it was considering Castle’s proposal, identified two issues, namely whether the proposed burning of AWDF would constitute a change of use requiring planning permission and its environmental impacts. As to both, he advised that whether the proposal, as a matter of law, involved disposal or recovery of waste, it would lead to an intensification, not a change, of existing use. He then went on to consider the environmental impacts of the proposal, dealing with its nature, location and visual impact on the locality, advising that all were acceptable in planning terms. As to other environmental matters, he made oblique reference to those now the subject of these proceedings and to the question whether an EIA could be required. But he concluded, without direct reference to any relevant provisions of the EIA Regulations or BPEO, that the Council could not require an EIA. He concluded his report by recommending grant of operational planning permission for the proposal.

The Council’s Minerals and Waste Local Plan, which was adopted in December 2001 dealt, in Chapter 12, paras 12.20 – 12.28 and 12.58, with the National Waste Strategy 2000, setting out its guiding principles on waste policy, including its hierarchy of waste management options and the proximity principle. And in policy 97, it provided that proposals for “incineration, treatment, handling or transfer of animal … waste” would be permitted subject to certain conditions, including that:

“… iv) they will not give rise to unacceptable adverse impacts on people or the environment; and

v)

they include facilities for the recovery of energy where appropriate.”

And in paragraph 14.56, the Policy required, in the case of any proposal “for new incineration facilities”, an EIA as to “whether the proposal is BPEO for the waste stream under consideration”.

In Derbyshire Waste Ltd v Blewett [2004] EWCA Civ 1508, [2005] Env LR 15 – a landfill case and, therefore, at the bottom of the BPEO hierarchy – this Court held, at paras 85 - 92, that satisfaction of the policies of BPEO, unlike an EIA, is not a pre-condition of the grant of planning permission, or even an overriding planning consideration, but that it is an important consideration and there may be other equally important considerations. In the following passage from paragraph 91 - a passage not only applicable to the landfill context with which that case was immediately concerned, I stated, with the agreement of Buxton and Laws LJJ:

“… the added focus given by the Landfill Directive and BPEO policies in Waste Strategy 2000 to the environmental harm from landfill when compared with other forms of waste management calls for particular attention or weight to be given to the objectives of the Waste Framework Directive when considering an application for planning permission for a landfill proposal. However the attainment of those objectives cannot sensibly be the overriding factor, regardless of all the considerations material to any individual decision, so as to be a pre-condition of the operation or a waste management plan and/or planning permission for a waste proposal. However important such objectives are, the tilt towards their attainment may, as the European Court recognised in Braine-le-Chateau, be reversed by other and more powerful considerations. The machinery provided by s. 54A and 70(2) of the 1990 Act allow for this contingency in appropriate circumstances and, in doing so, do not, in my view, violate either of the Directives.”.

The issue here, is, therefore, to be distinguished from that in Berkeley, which concerned a pre-condition of an EIA under Article 2(1) of the EIA Directive an EIA, for the grant of a planning permission.

The Judge held, in paragraphs 106 - 108 of his judgment, that the proposal related to the recovery of energy from waste and that the Council had no duty under the Minerals and Waste Local Plan to consider BPEO because its policy 97 was concerned with “new incineration facilities”. He was of the view, on the other hand, that it fell within the National Waste Strategy 2000, to which paragraph 4(1)(a) of Schedule 4 to the 1994 Waste Regulations pointed, and thus included recovery of waste and that the Council had considered it in that context. His reasoning requires careful examination, and I set out those paragraphs in full:

“103.

… Mr Tromans’ complaint was not so much about the way in which Policy 97 had been considered in domestic law but about the effect of its relationship to the Waste Framework Directive …, at Article 73 (which required the production of Waste Local Plans which met the requirements of the Waste Framework Directive).

…

105.

Seen as a purely domestic planning law point, Mr Tromans was not inclined to press the argument that Policy 97 was a policy which had been ignored because he was inclined to accept … that the criteria within Policy 97 had in fact been considered in various places in the Committee Report. …

106.

Mr Tromans was right to approach it in that way and for that reason. It is unnecessary to elaborate the point that the Committee Report does consider the suitability of the location, which is obviously governed by the physical and functional relationship to the very large scale cement works and quarry. The report considers highways and site access, the appropriateness of the silo, its location and visual impact on the site and it considers the question of adverse environmental impacts. Wholly consistently, it recognises the role of the EA in preventing them. The proposal clearly relates to the recovery of energy from waste.

107.

… This is a reflection of the conclusion which I have reached in relation to whether this proposal was for a waste disposal installation for incineration. Policy 97 demonstrates the clear contemplation that development within it will be EIA development. Although the project for which planning permission was sought is related to the use of waste as an energy source, i.e. to its recovery, it is simply not a proposal ‘for the incineration’ of animal waste…”

The Judge accepted that the Council had not specifically considered BPEO. However, as I have indicated, he went on to say that the reality was that the Council had considered the relevant objectives in paragraph 4 of Schedule 4 to the EIA Regulations, and it had considered its own plan, and that any specific consideration of BPEO would inevitably have led it to the same conclusion because:

This is how the Judge dealt with the BPEO issue in paragraphs 109 – 113:

“109 … the BPEO point also fails …once it is seen as ‘relating to’ waste recovery. BPEO ought then to have been considered, and I accept that there is no specific consideration of BPEO by the Local Planning Authority. But it is then difficult to see … how specific consideration of BPEO could possibly have led to a different conclusion on the planning application. It is not suggested that the AWDF could have been prevented from arising, or reduced. Recycling and recovery are equal in the next tier of the hierarchy and the proposal relates to recovery. Recycling is not suggested either, nor is composting, even though within that next tier it might be preferable for some wastes. Disposal is the lowest tier and this is not disposal, at least in any context where, as here, recovery is contrasted with it. The proximity principle is of particular importance where disposal is the aim because of the undesirability of waste being transported a long way. But the balance is plainly different where there is a recovery operation, as the BPEO description makes clear. There is a trade-off between the advantages of recovery of waste through its use as a fuel and the travel and other environmental costs. This trade-off does not apply to disposal.

110.

… In the absence of any material suggesting that a point of real practical significance was overlooked, and there is none, …. [i]t cannot be that a Local Planning Authority dealing with proposals has to consider all sorts of other possibilities, which no one has ever suggested exist, before it can conclude that recovery is a proper way to deal with material for which no better solution has been proposed.

111.

Its task would be otherwise endless. There must be a limit to the extent to which a waste planning authority has to trawl around the country to see what else could be done with a waste stream before it reaches a conclusion on what it is satisfied is an environmentally acceptable application which relates to the recovery of waste. The reality is that it considered the relevant objectives in paragraph 4 of Schedule 4 and it considered its own Waste Local Plan. Any specific consideration of BPEO would inevitably have led to the same conclusions on the material before me. [my emphasis]

112 . I emphasise in this context that the waste strategy itself shows that decisions should be taken on the basis of a local assessment of BPEO, which itself would vary from case to case, waste stream to waste stream, time to time and area to area. So there is no material point in the National Waste Strategy which was overlooked in practice, whatever theorising might be possible. In any event, BPEO is not the ruling consideration but one of a number of objectives which may need to be balanced. I can see no basis on which it could be said that there were any BPEO factors which could have led to a different balance here.

113.

This is not a conclusion on discretion but rather a conclusion on the absence of any material error because the omission was not an omission to consider any known material. Obviously if the matter were a point on discretion, the same factors would have led me to refuse relief on this point.

114.

It is worth pointing out that the EA did consider the same relevant objectives in its Variation Decision. It concluded that there would be no adverse environmental effects and gave broad consideration to the National Waste Strategy. It pointed to the move which the NWS encouraged away from disposal of waste towards its recovery through its use as a fuel. The EA concluded that trial use of AWDF was entirely consistent with the NWS which it was seeking to implement and as a national rather than a local body. I point that out because it was in a better position to take a broader view on the BPEO point if that were necessary.”

The issue, as circumscribed by Buxton LJ in granting permission to appeal, is, on the face of it, narrow, namely as to the relevance to the Judge’s decision whether a failure by the Council to have regard to BPEO would have made any difference to its decision to grant planning permission. However, the issue necessarily involves consideration of the impact of BPEO principles on the planning process, in particular, their role as compared with that of EIA requirements.

Mr Tromans accepted that a BPEO compatible result, unlike satisfaction of an EIA requirement, is not a pre-condition of a planning permission. However, he maintained, in accordance with the decision of this Court in Derbyshire Waste Ltd, that the BPEO principles are important planning considerations to which proper weight should be given by a decision-maker. He maintained that the Council should have considered, but did not, the BPEO main principles of hierarchy and proximity, and that, by analogy to the approach of the House of Lords in Berkeley in relation to failure to require an EIA, failure by the Council to give proper weight to the BPEO principles should, as a matter of due process, invalidate the permission, whether or not it would have granted permission if it had given them proper consideration.

Mr Tromans submitted that the Judge wrongly held that:

On the first of those submissions, Mr Tromans contended that, in the absence of any BPEO analysis, or attempt at it, the Judge was wrong in saying, in paragraph 111, that in reality the Council had considered the relevant statutory objectives and had overlooked no material point in the National Waste Strategy, since no mention had been made in Mr Haines’ report or in the minutes of the Committee’s meeting at which permission was granted of the statutory waste objectives or BPEO.

On the second and more important of those two submissions as to the relevance to the validity of the Council’s decision even if it would have been the same after a proper BPEO consideration, he submitted that the Judge wrongly distinguished the reasoning of this Court in Derbyshire Waste, at paras 88 – 91,which, although it concerned a planning permission for a landfill site for the disposal of waste, made the more general point that the objectives of the Waste Framework Directive ought to have been given proper weight as important, but not necessarily overriding planning considerations, namely, as required by paragraph 3.10 of the National Strategy Waste 2000, Part 2, of ensuring “that all concerns regarding waste management alternatives” are, and are seen to have been, “identified and addressed”.

As to the open-ended nature of the task posing difficulties, to which the Judge referred, Mr Tromans submitted that the Council should at least have attempted a BPEO analysis, that there was no sign of it having done so, and that the Court should be slow to rely on hindsight to say that it would have made no difference, as this Court said in Derbyshire Waste, at para 119.

Put in the most basic terms, Mr Tromans’ point was that it was not enough for the Judge to suggest that there were no obvious factors that would have led to a different decision, given the absence of an exercise to identify and evaluate each of them. By way of illustration, he drew attention to the evidence before the Judge that the proposal was to bring the AWDF to the Clitheroe site by road from a rendering plant in Staffordshire, and suggested that application by the Council of BPEO would have involved it in considering “in a transparent way” whether it could have been incinerated closer to Staffordshire or dealt with in more preferable ways higher up the waste hierarchy, such as by recovery for use as pet-food, organic fertiliser or composting. He referred to observations of this Court in Derbyshire Waste, at paras 109 – 113, in particular 110, that:

“… local authorities which are confronted, when considering waste planning applications with BPEO considerations in the absence of a regional or local waste management plan, are required by law and can be reasonably be expected to undertake some BPEO analysis ...”,

and maintained that the Judge’s dismissal of such possibilities on account of the impracticability of the widespread search for them that would be required, was an error of law. However, his suggestion as to what might have sufficed was hardly rigorous - an enquiry by the Council of Castle or the supplier of the AWDF what higher alternatives in the hierarchy had been considered or as to whether there was somewhere better to burn it.

However, the main and material thrust of Mr Tromans’ submission on the limited issue before the Court was that the Judge wrongly regarded BPEO simply as a conventional planning material consideration, when he should have treated it as a process which the Council was required by EU law to follow and with which the courts could not retrospectively dispense, praying in aid the words of Lord Hoffmann, with whom the other Law Lords agreed, in the context of EIA in Berkeley, at 615 - 616, namely:

“The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its view may be, is given an opportunity to express its opinion on the environmental issues. …

A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues.”

See also per Lord Bingham of Cornhill, at 607G and 608D that the grant of planning permission when a local planning authority was ignorant of the possible environmental effects of a proposed development was both contrary to EU law and outside its planning powers.

Miss Patterson and Mr Findlay submitted first that the Council had substantially complied with the BPEO principles in that, although the Judge found that the Council had not expressly considered them, he found that it had, in practice, taken into account all the relevant objectives, so as to render it “in line” with its duty under paragraph 2(1) of the 1994 Waste Regulations. Given the limitation imposed by Buxton LJ on this ground of appeal, these arguments do not have to be considered in their own right. In any event, there is no perversity or other challenge by Mrs Horner to the Judge’s ruling or law or findings of fact on this issue. However, as I have mentioned, consideration of them may throw light on the second and more important matter, namely whether it is relevant to his refusal of relief that specific consideration by the Council of BPEO would have made a difference to its decision on the question.

Miss Patterson, with whose submissions on this issue Mr Findlay also agreed, pointed to the planning context in which it arises, namely where the exercise for the Council was one of balancing all the material planning considerations, of which BPEO was one. She contrasted the requirements of Article 2.1 of the Directive, requiring an EIA as pre-condition of the process of obtaining planning permission for a project likely to have significant environmental effects, carrying with it, as Lord Hoffmann said in Berkeley, at 615-616, rights of the citizen to participate in the process to a fully informed decision.

Given the circumstances here, including the facts that the proposal concerned merely a charge or an extension to an existing manufacturing process and that the waste management proposal was higher than disposal in the BPEO hierarchy, Miss Patterson submitted that it would be unrealistic and disproportionate to expect the Council to have conducted a full BPEO process and that any failure by it to do so could not have so skewed its balance of the material planning considerations to render its grant of permission unlawful. She referred to the Court’s approach in Derbyshire Waste, at paras 90 – 91, that, whilst objectives in the Waste Framework Directive and the 1994 Waste Regulations were important, they did not necessarily override all other considerations in a waste planning application.

Mr Findlay added that, in the circumstances, the only alternative in the BPEO hierarchy to the waste recovery proposal here was the lesser one of disposal, to which also, considerations of proximity were more relevant.

The issue on this ground is, as I have said, limited to the question of relevance to the Judge’s consideration of the BPEO principles whether specific consideration of it by the Council would have made any difference. It goes to the question whether any failure of process by the Council in relation to the BPEO principle rendered its decision unlawful so as to deprive him of jurisdiction, as a matter of law or by way of discretion to uphold the decision.

The jurisdiction challenge is based largely on observations of this Court in paragraphs 107 – 113 of Derbyshire Waste, in which it declined to interfere with the decision of the judge below, Sullivan J, in holding that even if the local planning authority had not been obliged to comply with BPEO methodology, its consideration of its principles was so inadequate as to render the grant of planning permission unlawful. In that case, unlike this, there was no local waste management plan.

I had better summarise what the Court’s observations in Derbyshire Waste amounted to. In doing so, I emphasise that they were not - and could not logically have been – limited to landfill cases:

The Court in Derbyshire Waste thus did not purport to lay down any hard and fast rule as to what would or would not pass the test of legality as a matter of generality even where, as in the case before, it, there was no local waste management plan. It follows that it is a highly insecure basis upon which to found an argument of illegality for want of consideration of BPEO considerations, as Mr Tromans has attempted in this case, where there is a local waste management plan to which the Council had regard, as the Judge noted in paragraphs 106, 107 and 111 of his judgment. (see paragraphs 59 and 61 above).

More importantly, the Judge, in paragraphs 109 – 112, found that the Council effectively considered all the relevant factors going to the achievement of the 1994 Waste Regulations’ objectives. Mr Tromans has not suggested to the Court any factor relevant to the BPEO hierarchy or proximity principles or any realistically useful line of enquiry open to the Council additional to those discussed by the Judge in those paragraphs.

As Miss Patterson emphasised, there is an important distinction to be drawn between an EIA assessment and consideration of BPEO principles where either or both are required. In Berkeley, Lord Hoffmann, with whom the other Law Lords agreed, indicated at paragraphs 7 and 8 that an EIA has a two-fold purpose, first to produce an assessment that could be weighed in the planning balance, and second, to help to inform the public of the substantive issues in the case. The BPEO principles do not have that dual role; they are relevant, albeit importantly, to the balance of planning considerations in the decision-making process, namely as to whether the grant of permission would be “in line” with the relevant waste objectives. A judge, when considering the lawfulness of a planning permission against the exercise of the local planning authority’s balance of material planning considerations, is, in my view, entitled, subject to Wednesbury constraints, to form a view as to whether in the circumstances, given the balance of material considerations in play or that should have been in play, the omission or inadequate consideration by the authority of BPEO as one of them would not have made any difference. If, as here, a judge holds that it would not, given the paucity of practicable lines of enquiry open to it, that, in my view, is a relevant consideration to his decision that the permission is legally valid.

Accordingly, in my view, the appeal under this ground should also be dismissed.

If I am right in my conclusions that the Judge correctly held that the planning decision of the Council is not legally vitiated on EIA or BPEO grounds, there is no need to consider the question of discretion. However, in case I am wrong on either and in deference to the submissions of counsel, I will express an opinion on it.

In relation to EIA, the Judge indicated that if he had reached a different conclusion on the issue of construction of the EIA Regulations, he would not have been minded to exercise his discretion to refuse relief. He said, at paragraph 68 of his judgment and at paragraph 138:

“68.

The issues which would … have arisen as to the exercise of any discretion not to quash the planning permission in the light of the Committee Report and the EIA’s subsequent conclusion on the unchallenged variation decision would have been difficult. An EIA might have been required, and the fact that the result of the planning application would have been the same in all probability might well be no answer. The fact that the detailed consideration led to the conclusion that there would be no significant environmental effects might not necessarily avail either.”

“139 … Although I did not reach a final conclusion on … [the discretional] point, I did not find the arguments addressed by Mr Findlay on that particularly persuasive. Indeed, I would have been minded to hold against him. …”

The Council does not seek to rely on discretion on the EIA issue, although, as appears below, Castle does, on the same basis, as it does on the BPEO issue, namely the subsequent approval by the Environment Agency.

On the BPEO issue, the Judge, as I have indicated, stated in paragraphs 113 and 114 of his judgment (see paragraph 61 above) that, if the matter had been an issue on discretion, he would have refused relief on the same points that led him to reject the claim in law, namely “the absence of any material suggesting that a point of real practical significance … [had been] overlooked and the sheer impracticability for the Council on this individual planning application of giving any more elaborate consideration to BPEO factors than it did.

Both the Council and Castle seek, in addition and if necessary, the exercise by this Court of its discretion in their favour on the strength of evidence which the Court has looked at de bene esse. After the Council’s grant of planning permission in January 2004, the Environment Agency, on 14^th May 2004, following burning trials by Castle, permitted variation of an existing permit under the PPC Regulations to allow permanent use of tyre chips as an alternative fuel in Kiln 7. In September 2004 the Environment Agency granted a further variation to the permit, to allow Castle to undertake trial burning of AWDF in Kiln 7. In paragraphs xi and xii of the Agency’s decision (which was before the Judge) it stated:

“xi)

The probable impact of the emissions from the Installation on the wider environment as a result of the Variation has been carefully considered. The Agency has concluded that the conditions that are included in the Variation will ensure that the Installation will continue to be operated during the Trial so as to ensure that all appropriate preventative measures against pollution are taken, and that no additional pollution will be caused.

xii)

Having considered all of the information provided by the Operator and taking into account the comments received during the consultation, the Agency is satisfied that the trial use of AWDF as a partial substitute fuel will not cause any detrimental change in emissions as a whole. The Agency is satisfied that the Variation complies with the requirements of the relevant legislation, including the Regulations. The Agency has therefore decided to grant the Variation.”

Two years later, in September 2006 and over a year after the Ouseley J’s judgment, the Environment Agency produced a comprehensive and detailed assessment of the trial, concluding with the grant of consent to the permanent use by Castle of AWDF as a substitute fuel in Kiln 7. In paragraph vi) of the summary of the assessment, the Agency stated:

“vi)

This assessment has concluded that the Critical Success Factors (CSFs) for the trials have been met and there will be no changes in the overall environmental effects of the process as a result of burning … [AWDF] up to the rate used in these trials.

vii)

The Agency has therefore agreed to Castle Cement resuming the burning of …[AWDF] as a substitute fuel on a permanent basis at the Ribblesdale Works subject to certain conditions.”

Later, in a detailed formulation of its conclusions, the assessment included the following statements material to AWDF:

“17.9

The composition of by-pass dust is not affected by the use of …[AWDF] and therefore its effects on the local environment are unaltered. It will mean however that the locally available landfill space will be used at a faster rate.

17.10

Although there will be an addition 2.5 tonnes per day of bypass dust that has to be landfilled, the burning of … [AWDF] as a fuel will in result over 200 tonnes per day of …[AWDF being diverted away from landfill. The use of …[AWDF] therefore represents an overall environmental benefit in terms of landfill requirements.

17.11

The higher chlorine content of … [AWDF] does not appear to affect any releases to air, in particular the levels of dioxin and furans, all of which remain below the permitted levels.

17.12

While the use of … AWDF] has a neutral overall effect on the local environment, it does have the global advantages of a potential reduction in emission of CO2, reduction in the use of fossil fuel, and reduction in land filling of waste.

17.13

There have been no substantiated complaints about the site that can be attributed the use of … [AWDF].

17.14

No other issues have arisen during or after the trial that suggest that … [AWDF] should not be used as a substitute fuel on a permanent basis at the works.”

This conclusion is challenged by Mrs Horner, and she indicated her wish to adduce evidence in response to this evidence.

Mr Findlay, whose submissions insofar as they bear on the BPEO issue were supported by Miss Patterson, repeated the submission he had made to the Judge that, if, contrary to his ruling, the Council erred in law in applying the Class 13(a) threshold to the proposed development or in failing to have sufficient regard to BPEO principles, the Court should, in the exercise of its discretion, decline relief.

The primary basis for Mr Findlay’s submission was the Environment Agency’s conclusion after its assessment of test burning at Castle’s cement works of over 10,000 tonnes of AWDF, that there would be no changes in the overall environmental effects of the process as a result of burning it, and that there was no evidence to the contrary.

As to the EIA issue, his argument was that the Environment Agency, in determining whether to grant the variation to the PPC permit in September 2004 to trial burn AWDF, carried out an exercise equivalent to an EIA. He submitted that, if the Council had now to consider whether the proposed installation might have a significant adverse effect on the environment so as to require a screening opinion as to whether it was EIA development, that is, “likely to have significant effects on the environment”, it could only conclude on the information now available that there was no possibility of such effects and so does not require an EIA. He added that the Council would, as a matter of planning judgment and in practice, give great weight to the February 2006 conclusions of the Environment Agency, bearing in mind policy guidance in PPS 23, at paras 10 & 11, in particular in para 11, that:

“[p]lanning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it”

He relied on the same material in support, if necessary, on the BPEO issue, repeating also the arguments he had advanced on the substantive issue of lawfulness of the planning permission.

Finally, Mr Findlay, supported by Miss Patterson, urged upon the Court the principle of pragmatism that it should not act in vain.

Mr Tromans, as to the EIA issue, relied, nevertheless, on the main thrust of the ruling in Berkeley, that it was not open to a court to exercise its discretion not to quash a planning permission where there had been a failure by the decision-maker to consider whether an EIA was required under the EIA Regulations, and not capable of retrospective judicial dispensation since such a failure would be inconsistent with the court’s obligations under European law to enforce Community rights: as Lord Hoffmann put it at 615- 616 (see paragraphs 69 above).

Mr Tromans reminded the Court of the Judge’s view in paragraph 68 of his judgment that the Council’s state of knowledge when considering the application was not such that it could have excluded the possibility of significant adverse environmental effects from the proposed development. In the light of that view, he submitted that subsequent information as to the absence of any such possible effects is irrelevant to what was required of the Council at the time it was considering its decision. He said that, whatever has emerged since does not enable the Council to argue that, if it had conducted a screening exercise at the time, it could not have then concluded, in the words of Class 13(a) of Schedule 2, that there would be no possible “significant adverse effects on the environment”. The potential for the Environment Agency to monitor and exercise detailed control of possible environmentally harmful emissions did not, he submitted, allow the Council to shed its planning/EIA responsibilities in this respect, citing as an example the approach of Mr George Bartlett QC, sitting as a Deputy High Court Judge in Hopkins Developments Ltd v First Secretary of State [2006] EWHC 2823 Admin; [2007] Env LR 308.

As to BPEO, Mr Tromans submitted that the issue should be considered along Berkeley, EIA, lines, namely that BPEO is not merely a material planning consideration, but a process to be followed, and one with a public dimension, – a submission to which his suggestion, in response to a question from the Court, of an enquiry by the Council of Castle or of the supplier of the AWDF hardly lived up. Nevertheless, as a generality, he adhered to an approach that, whilst BPEO does not involve such prescriptive procedures as EIA, exercise by the Judge or this Court of discretion to refuse relief in this instance, if occasion for it had arisen or were to arise, would have been or would be an impermissible retrospective dispensation of an important EU obligation.

Mr Tromans also maintained that, if the Court had occasion to consider the issue of discretion on BPEO on the strength of Castle’s evidence of the Environment Agency’s subsequent approval of the burning of the AWDF, the Court should also consider contrary evidence prepared on behalf of Mrs Horner.

As I have said, there is a clear distinction to be drawn between the EIA regime, imposing requiring an EIA as a pre-condition of planning permission and the BPEO principles, which, should be considered as important, though not necessarily overriding, considerations in the balance of material planning considerations going to the issue whether to grant permission.

In the case of EIA, if discretion to refuse relief were possible, there might be interesting questions as to: whether the Court’s approach should be: 1) to consider whether the Judge would have been bound to exercise his discretion if he had known what the Court knows; or 2) whether the Court should exercise its own discretion; and 3) whether the pragmatic principle that the Court should not act in vain has a special force where subsequent developments conflict with fundamental illegality. As the Judge would have been unlikely on the material before him, to exercise his discretion to refuse relief if he had found it to be a Schedule 2, Class 13(a) case, none of such questions arise for decision and none has been fully argued, I see no need to consider them.

However, I should not miss the opportunity to express some unease at an over-wide reliance on the House of Lords’ rejection in Berkeley, of the use of discretionary refusal of relief as impermissible “retrospective dispensation” of the requirement of an EIA or similar EU “pre-condition” of grants of permission under other domestic planning or regulatory regimes. This Court, in a number of cases has expressed concern as to the over “narrow” or seemingly absolute nature of the observations of Lord Bingham of Cornhill and Hoffmann in Berkeley resulting in “legalistic” frustration of developments for which, on full consideration of all material planning considerations there is a strong planning case. In two such cases, Brown v Secretary of State [2003] EWCA 170, and R (Jones), the latter of which concerned the need for an EIA, Carnwath LJ, at paras 47 and 59 respectively, referred to the general principles governing the exercise of the court’s discretion in Wade, Administrative Law, 8^th ed, p688ff, a passage cited with approval by Lord Steyn in R (Burkett) v Hammersmith & Fulham LBC [2002] 1 WLR 1593. As Carnwath LJ observed in Brown, and repeated in R (Jones):

“The speeches (in Berkeley) need to be read in context. Lord Bingham emphasised the very narrow basis on which the case was argued in the House. The developer was not represented in the House and there was no reference to any evidence of actual prejudice to his or any other interest. Care is needed in applying the principles there decided to other circumstances such as cases where as here there is clear evidence of a pressing public need for the scheme which is under attack.”

Carnwath LJ went on in, in R (Jones), to agree with a broader point derived from the judgment of the European Court in Case C – 435/97 Bozen, [2000] 1 CMLR that, in the case of Annex II/Schedule 2 projects, whether a project is likely to have “significant” effects on the environment is a matter for the planning decision-makers, subject only to judicial review on conventional Wednesbury grounds. I respectfully agree with those reservations as to the generality of application of the Berkeley approach, and also with those in the commentary to the report that it may represent a “high water mark” for EIA cases.

As to BPEO, the issue is much more straightforward and could be resolved without formal admission into evidence and consideration of the potentially conflicting evidence of the Environment Agency’s subsequent approval of the project and Mrs Horner’s proposed evidence seeking to undermine the basis for that approval. Quite shortly, I would agree with the contingent view of the Judge, for the reasons he gave in paragraphs 109 – 113 of his judgment (see paragraph 62 above), that there was nothing to suggest that the Council had overlooked any point of real practical significance, and that it would have been impracticable, inappropriate and disproportionate for it on this individual planning application to attempt any more elaborate consideration of BPEO factors than it did. In particular, there would have been little sense in it searching, having regard to the proximity principle, for alternatives nearer to the point of supply, one suggestion of Mr Tromans.

More importantly and to the point - and with Carnwath LJ’s words in Brown and R (Jones) in mind - I could not possibly regard the Judge’s contingent view on discretion, as Wednesbury irrational, the only basis on which this Court could properly interfere.

That, in my view, would be enough to dispose of the issue of discretion if it were to arise. I do not consider that it would be necessary or appropriate for this Court to attempt to do so by examination of the various issues of technicality thrown up by conflicting material as to the performance of the project since the grant of permission even if it were competent to do so, which it is not.

However, for the reasons I have given as the two substantive issues before the Court, I would dismiss Mrs Horner’s appeal.

It is difficult not to have misgivings about a planning mechanism which, by being based on simple floorspace, allows single storey structures of unlimited height to escape environmental control so long as their ‘footprint’ is less than 1000 square metres. But it is not open to the court to scrap a criterion laid down by domestic law in presumptive conformity with the EIA Directive, and to adopt instead a default rule of its own making, even if such a rule better reflected – as it might well do - the intentions of the Directive. Where no floorspace is involved at all, for example where there is a change of system only, resort to the Directive may be legitimate. For the rest, the default process, if there is one, has to lie in the Secretary of State’s power to give a direction that a particular development is an EIA development.

I agree therefore with the judgment of Lord Justice Auld.

I also agree.