Loader, R (on the application of) v Secretary of State for Communities and Local Goverment & Ors

This is an appeal against a judgment of Lloyd Jones J dated 28 July 2011 whereby he refused an application by Ms Anne-Marie Loader (“the appellant”) to quash a decision of the Secretary of State for Communities and Local Government (“the Secretary of State”). On 7 July 2009, the Secretary of State gave a screening direction by which he stated that a development proposed by Churchill Retirement Living Ltd (the Second Interested Party) was not likely to have “significant effects on the environment” for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations"). It followed that the proposed development was not an Environmental Impact Assessment (“EIA”) development and did not require the procedure under the 1999 Regulations to be followed before a planning permission could be granted.

Permission to appeal was granted, on a renewed oral application, by Richards LJ who stated that “there is a compelling reason for an appeal to be heard in relation to it.” “The issue is one of sufficient importance to merit an authoritative and fully reasoned ruling by this court”.

The screening direction related to the proposed redevelopment of a site at Gulliver's Bowls Club, Knole Road, Bexhill-on-Sea to form 41 sheltered apartments for the elderly, car parking, landscape and access and a new outdoor bowls green, indoor rink, club facilities and car parking. The appellant’s standing to make the application for judicial review has not been challenged.

Planning permission was first sought in August 2006 and was refused by Rother District Council ("the Council") on 12 October 2006. An appeal to the Secretary of State was allowed but the grant of permission was quashed by consent on 10 June 2008 for agreed failure to follow the procedure under the 1999 Regulations. On remittal to the Secretary of State, the screening direction now challenged was made. It determined that:

Reasons for the decision, which was made by the Planning Inspectorate (“the Inspectorate”) on behalf of the Secretary of State, were provided on 4 August 2009. (No attempt has been made to distinguish the role of the Inspectorate from that of the Secretary of State.) The reasons were:

Following further representations both by the appellant and by the second interested party, the Secretary of State, by letter of 24 September 2009, confirmed the decision. On receipt of a pre-action protocol letter from the appellant’s solicitors, the Secretary of State provided a copy of a screening checklist dated 12 September 2009 completed on behalf of the Secretary of State. It was said that the check list was in the format approved by the EU Commission.

For the appellant, Mr Pereira referred to the EU Environmental Impact Assessment Directive (85/337/EEC) as amended (“the Directive”), transposed into domestic law by the 1999 Regulations. Both the Directive and the 1999 Regulations have now been replaced but the changes are not said by either party to be material for present purposes. It was submitted that the Secretary of State had misdirected himself in law as to the meaning of “significant effects on the environment” in article 2(1) of the Directive and in regulation 2.

The purpose of the procedure is described in one of the recitals to the Directive:

A screening direction is defined in Regulation 2(1) of the 1999 Regulations as “a direction made by the Secretary of State as to whether development is EIA development”. (Regulation 2 provides that the decision of the Secretary of State as to whether development is EIA development is a “Screening Direction”; the written statement of the opinion of the relevant planning authority, normally the local planning authority, is known as a “Screening Opinion”).

Under the heading “Environment”, article 191(2) of the Treaty on the Functioning of the European Union provides:

Article 2.1 of the Directive provides:

Article 4 provides:

Annex I includes a range of projects entirely different in nature and scale from the present proposal. Annex II also sets out a range of projects which includes, under the heading “Infrastructure Projects”, at paragraph 10:

The selection criteria referred to in article 4.3, as set out in Annex III, are “Characteristics of projects”, “location of projects” and “characteristics of the potential impact”. Under the third heading, the most relevant for present purposes, it is stated:

Reference was also made to Directive 2011/92/EU of 13 December 2011 which is a Codification Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment. It does not apply in the present case because it had not taken effect but reference was made to the reaffirmation of the precautionary principle in recital 2. Recital 11 provides:

The 1999 Regulations reflect the contents of the Directive. Regulation 2 defines “EIA development” as development which is either:

Circular 02/99 Environmental Impact Assessment gives guidance on the application of the Directive and Regulations. It provides:

Annex A to the Circular provides, in relation to urban development projects:

the site area of the scheme is more than 5 hectares; or

it would provide a total of more than 10,000 m2 of new commercial floorspace; or

the development would have significant urbanising effects in a previously non, urbanised area (e.g. a new development of more than 1,000 dwellings).”

In June 2001, the Commission issued Guidance on EIA Screening. That provides, at B4.1, checklists:

I do not propose to list the questions in the checklist. They are appropriate to the judgment to be exercised and are prefaced by these instructions:

On behalf of the appellant, Mr Pereira submitted that a significant environmental effect, as defined in the Directive, is one that has a real prospect of influencing the outcome of the application for development consent. The expression must be given an autonomous meaning which has regard to its context and the purpose of the Directive. Underlying the procedure is the purpose of achieving a high level of environmental protection through the precautionary and preventative principles.

The procedure provided by the 1999 Regulations contemplates the adoption by the relevant planning authority of a screening opinion at an early stage of the application process (regulations 5 and 7). Because the screening decision is normally (though not in this case) taken at an early stage of the application process, it will often be based on limited information. The uncertainties at that stage are such that a broad construction must be given to the expression “significant effects”. The requirement for environmental assessment is not confined to applications which are likely to have major environmental effects.

The test is consistent, it was submitted, with the approach advised in the Commission’s Guidance on EIA Screening which provides a Screening Checklist and states (paragraph 20 above) that when considering what is “significant”, “a useful simple check is to ask whether the effect is one that ought to be considered and to have an influence on the development consent decision”. Trivial environmental impacts would not do so. The application of the precautionary principle means that unless the decision-maker can exclude on the basis of objective evidence any real possibility of the effects being significant, an EIA is required. In a case such as the present, the real possibility of impacts being found at a later stage having significant effects could not be ruled out at the screening stage. Unacceptably adverse effects have already been identified in the council’s reasons for refusing planning permission.

Mr Pereira accepted that the test he proposed was at odds with language used in the domestic authorities but submitted that the courts had wrongfully failed to consider the effect of the precautionary principle. Reliance was placed on the decision of the Grand Chamber in Waddenzee (Case C-127/02) [2004] ECR 1-7405, a decision under the Habitats Directive (92/43/EEC) of 21 May 1992. The court stated, at paragraph 44:

The correct test, submitted Mr Maurici on behalf of the Secretary of State, is that specified in regulation 2: Is the development likely to have significant effects on the environment?

He accepted that the expression “is likely to have” in the Directive and Regulations means no more than that there is a serious possibility of it happening. In R (Bateman) v South Cambridgeshire DC[2011] EWCA Civ 157, Moore-Bick LJ, with whom Jackson LJ agreed, stated, at paragraph 17:

In R (Morge) v Hampshire County Council[2010] EWCA Civ 608, Ward LJ, with whom Hughes LJ and Patten LJ agreed, stated, at paragraph 80, that:

The test and approach to be applied were stated in Jones v Mansfield[2004] Env LR 21. At paragraph 17, Dyson LJ stated:

At paragraph 38, Dyson LJ stated:

As Laws LJ, with whom Tomlinson LJ and Kitchin LJ agreed, stated in R (Bowen-West) v Secretary of State [2010] EWCA Civ 321, at paragraph 33:

There is ample authority that the conventional Wednesbury approach applies to the court’s adjudication of issues such as these (Jones, paragraphs 14, 15, 17 and 60 and Bowen-West, paragraph 39). Mr Pereira accepted that, provided the correct test is applied, the court should approach a challenge to the decision on Wednesbury principles.

Mr Maurici submitted that the appellant’s reliance on the single sentence in the Commission Guidance, set out at paragraph 20 above, is misplaced. In Bateman the test said to emerge from that sentence was rejected, in obiter observations, by Moore-Bick LJ, with whom Jackson LJ agreed. He stated, at paragraph 19:

Counsel submitted that the test advocated by the appellant was not appropriate to the implementation of the purpose of the Directive and the Regulations. Assessment of the impact of an environmental consideration on a particular planning decision poses a different question from assessing whether the same consideration is likely to have significant effects on the environment. Almost any planning application contested on environmental grounds would require an EIA, an approach inconsistent with the purpose of the legislation as expressed in the annexes and schedules and with the guidance in the Circular. The elaboration involved in the case of an EIA application involves, for example, wide consultation, as spelt out in paragraphs 97 to 99 of Circular 02/99, and a much longer time limit for the determination of applications (paragraph 107). Such elaboration could not sensibly be appropriate in every case where an environmental objection which might influence the decision on planning consent is raised.

Mr Maurici relied on the judgment of the ECJ in Commission v United Kingdom [2007] Env LR 1. The case involved the large-scale White City Development Project which included about 58,000 square metres of retail and leisure development, a major new road junction and 4,500 car parking spaces. It had been decided that an EIA was not required. The Court found against the Government on the basis that it had been decided that an environmental assessment was required only at the initial stage of granting permission for that major development and not at the later reserved matters stage. However, the Court also held, at paragraph 89, that article 4(2) of the Directive gave the competent authority a degree of freedom in appraising whether or not a particular project must be made subject to an assessment.

At paragraph 91, the Court considered evidential requirements where a screening decision was challenged. In order to demonstrate that the national authority exceeded the limits of their discretion, “the Commission must furnish at least some evidence of the effects that the project is likely to have on the environment.” The Court added, at paragraph 92:

Mr Pereira fairly made the point that there is no such lack of evidence in the present case. It is provided by the council’s reasons for refusal and evidence in support. The test of ‘manifest error of assessment’ expressed in that paragraph does, however, confirm the ‘degree of freedom’ provided by paragraph 89. The limits of “that discretion are to be found in the obligation, set out in article 2(1) of the directive, that all projects which are likely to have significant effects on the environment are to be subject to an assessment.”

In relation to Waddenzee, Mr Maurici drew attention to the different wording of the Habitats Directive as compared with the Directive. In article 6, the Habitats Directive is concerned with a project “likely to have a significant effect” on the management of a particular protected site and its effect on the “integrity of the site concerned”. That site-specific test is different from the general test in the Directive. Moreover, Waddenzee does not detract from the principle that assessment is a matter for the relevant national authorities.

In R (Hart DC) v Secretary of State [2008] 2 P & CR 16, Sullivan J considered the effect of the Habitats Directive. He stated, at paragraph 72:

The Commission Guidance underlines the role of guidance provided by Member States and describes the “useful tools” presented by way of checklists as “designed to help answer the question ‘Is this project likely to have significant effects on the environment?’”.

Mr Maurici accepted that screening decisions will usually be made at an early stage of the planning process. However, if a council came to the belief during the course of making the decision that the proposed development might have significant effects on the environment, it would be open to the council to require an environmental statement at that stage (R (Mageean) v Secretary of State[2012] Env LR 3, per Sullivan LJ).

In Gillespie v First Secretary of State[2003] Env LR 30, cited in Jones and in Hart DC, the question was whether proposed mitigation measures could be taken into account when assessing the effects of a development on the environment. It was held, at paragraphs 36 and 37, that the decision maker must “examine the actual characteristics of the particular project” and consider whether the uncertainties present are such that their favourable implementation can or cannot be assumed when the screening opinion is formed.

In Jones, Dyson LJ, having referred to Gillespie, stated, at paragraph 39:

What emerges is that the test to be applied is:

The criteria in the annexes to the Regulations justify the approach to the question proposed in Circular 02/99, paragraphs 33, 34 and annex A (cited at paragraphs 17 and 18 above). It is stated, at paragraph 34, that the number of cases of schedule 2 development which are EIA developments will be “a very small proportion of the total number of schedule 2 developments”.

I do not consider that the reference in the Commission Guidance to a “useful simple check” (paragraph 20 above) can lead to a conclusion that the test proposed by the appellant is appropriate. Whether the perceived environmental effect has an influence on the development consent decision is a relevant consideration but cannot in itself answer the question to be posed. The sentence in the Guidance relied on also requires the decision maker to ask “whether the effect is one that ought to be considered”, an affirmation of the need to answer the question “is this project likely to have significant effects on the environment” posed at B3.4.1 of the Guidance. The purpose of the checklist is stated to be to help decide whether the effects are likely to be significant. Establishing that the environmental effect will influence a particular development consent decision may well be a necessary requirement for a decision that development is EIA development but it is not determinative of whether the effects are likely to be significant and “ought to be considered”.

The proposed test does not accord with the overall purpose and tenor of the procedure initiated by the Directive. A formal and substantial procedure is contemplated, potentially involving considerable time and resources. It is contemplated for a limited range of schedule 2 projects, those which are likely to have significant effects on the environment. To require it to be followed in all cases where the effect would influence the development consent decision would devalue the entire concept. It is not contemplated, for example, that if the Secretary of State took the view that a proposed house extension might affect the amenity of a neighbour on environmental grounds, and do so decisively, it would for that reason necessarily be EIA development. I agree with the approach of Moore-Bick LJ in Bateman and with the judge.

Applying that approach to the present facts, I have no doubt that the Inspectorate was entitled to conclude that the proposed redevelopment would not have significant effects on the environment. A checklist was completed and no complaint is made about its contents. Judgment was exercised and reasons given for the decision, cited at paragraph 5 above, which justify the conclusion reached. It may be added that the application for planning permission in this case did not involve the uncertainties which have presented difficulties of analysis in some of the cases considered. Moreover, judgment was exercised, not at the early stage of the procedure when such decisions are often made, but after full consideration of the planning issues by the local planning authority and also by an Inspector appointed by the Secretary of State. Full information as to the nature of the proposal and its likely effects was available.

I would dismiss this appeal.

I agree.

I also agree.