Thornhill v Cambridge City Council & Anor

This is an appeal against the order dated 18 June 2014 of Patterson J dismissing the appellant’s renewed application for permission to apply for judicial review of a planning permission granted by the respondent on 20 December 2011 for a change of use to car hire business and erection of ancillary office and washdown/canopy facility on land off Swanns Road, Cambridge. Patterson J concluded that the claim was unarguable. Her judgment is reported at [2014] EWHC 2616 (Admin)

The issue before the judge was whether it should have appeared to the respondent Local Planning Authority that the application for planning permission for a change of use from second hand car sales to car hire with a single storey office, parking and washdown area on a 0.18 hectare site within a scrap metal yard was an application for EIA development for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which were the regulations in force when the application was determined (“the Regulations”).

The Regulations transposed into domestic law the requirements of Council Directive 85/337/EEC (as amended by Council Directives 97/11/EEC 2003/35/EEC and 2009/31/EEC) (“The EIA Directive”). The underlying purpose of the EIA Directive is to ensure that development consent for projects which are likely to have “significant effects on the environment” should be granted only after prior assessment of the likely significant environmental effects has been carried out.

For the purposes of the Regulations, EIA development is either schedule 1 development or schedule 2 development which is “likely to have significant effects on the environment by virtue of factors such as its nature, size and location.” Although schedule 1 is not directly relevant for present purposes, it does give some indication of the kinds of project which are likely to have significant environmental effects for the purposes of the EIA Directive and the Regulations. Schedule 1 developments include oil refineries, nuclear power stations and long distance railway lines. Turning to schedule 2, Regulation 2(1) defines schedule 2 development as follows:

“‘Schedule 2 development’ means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where: (a) any part of that 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 application site is not in a sensitive area (as defined in the Regulations) so paragraph (b) is applicable. The descriptions of development in column 1 of the table in schedule 2 include at paragraph 10 “infrastructure projects.” Under the heading “description of development” paragraph 10 says this:

“The carrying out of development to provide any of the following: (a) industrial estate development projects;

(b)

urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas;

(c)

construction of intermodal transshipment facilities and of intermodal terminals (unless included in Schedule 1);

(d)

construction of railways (unless included in Schedule 1);

(e)

construction of airfields (unless included in Schedule 1);

(f)

construction of roads (unless included in Schedule 1);

(g)

construction of harbours and port installations including fishing harbours (unless included in Schedule 1);

(h)

inland-waterway construction not included in Schedule 1, canalisation and flood-relief works;

(i)

dams and other installations designed to hold water or store it on a long-term basis (unless included in Schedule 1);

(j)

tramways, elevated and underground railways, suspended lines or similar lines of a particular type, used exclusively or mainly for passenger transport;

(k)

oil and gas pipeline installations (unless included in Schedule 1);

(l)

installations of long-distance aqueducts;

(m)

coastal work to combat erosion and maritime works capable of altering the coast through the construction, for example, of dykes, moles, jetties and other sea defence works, excluding the maintenance and reconstruction of such works;

(n)

groundwater abstraction and artificial groundwater recharge schemes not included in Schedule 1;

(o)

works for the transfer of water resources between river basins not included in Schedule 1;

(p)

motorway service areas.”

Column 2 in the table sets out the applicable thresholds and criteria. The applicable threshold for infrastructure projects falling within sub-paragraphs 10(a), (b), (c) and (p) is: “The area of the development exceeds 0.5 hectare.” The applicable threshold for most of the other kinds of infrastructure project listed in paragraph 10 is “the area of the works exceeds 1 hectare.” Paragraph 11 deals with “other projects.” These include in sub-paragraph (e) “storage of scrap iron including scrap vehicles.” The applicable threshold in respect of such projects include: “(1) the area of deposit or storage exceeds 0.5 hectare…”

Paragraph 13 in the table is as follows. The description of development is:

“Any change to or extension of development of a description listed in Schedule 1 (other than a change or extension falling within paragraph 21 of that Schedule) or in paragraphs 1 to 12 of Column 1 of this table, where that development is already authorised, executed or in the process of being executed, and the change or extension may have significant adverse effects on the environment.”

The applicable threshold for any change to or extension of development of the description listed in paragraphs 1 to 12 of column 1 of the table is:

“In relation to development of a description mentioned in Column 1 of this table, the thresholds and criteria in the corresponding part of Column 2 of this table applied to the change or extension (and not to the development as changed or extended).”

Discussion

Patterson J said in paragraph 27 of her judgment that the development proposal for a change of use from car sales to car hire “is not one that would come as an ordinary matter of English law within the descriptions of the then current 1999 EIA Regulations.” Mr Hyam submitted on behalf the appellant that this conclusion of the judge was wrong. The proposed change of use on the 0.18 hectare site within the scrap metal yard was a change to or extension of development of a description listed in paragraph 10(a) of column 1 of the table; namely, industrial estate development projects. The scrap metal yard within which the change of use was to take place was an “industrial estate development project” for the purposes of paragraph 10(a). Although the lawful use of the scrap metal yard (pursuant to a certificate of lawful development in respect of the northern part into a planning permission for inter alia storing sharing and baling scrap metal in respect of the southern part) extended to only 0.4 hectares, if other land which the appellant submitted was being used unlawfully for the turning and manoeuvring of lorries in association with the scrap metal yard was included, then the site of the scrap yard exceeded the 0.5 hectare threshold in column 2 of the table in respect of paragraph 10(a).

I do not accept the submission at the heart of the appellant’s case that a change of use from second hand car sales to a car hire business on a 0.18 hectare site within a scrap metal yard can sensibly be described as a change to or an extension of an industrial estate development project, as described in paragraph 10(a) of column 1 in the table in schedule 2. Although Mr Hyam accepted that the words “industrial estate development project” must be construed in the context of the Regulations as a whole, the appellant’s case is, in reality, based on plucking those words out of context and giving them a strained interpretation in isolation. Paragraph 10(a) in column 1 must be construed in the context of the descriptions of the other infrastructure projects which fall within paragraph 10. Moreover, the description of development in column 1 should not be construed in isolation from the applicable thresholds in column 2. When paragraph 10 is read as a whole and the two columns are read together they give a clear indication of the nature and size of those infrastructure projects that may be likely to have significant effects on the environment for the purposes of the Regulations and the EIA Directive.

In that context, and as a matter of ordinary language, a scrap metal yard is not “an industrial estate development project.” Even if it could be so described it falls below the 0.5 hectare threshold. The fact that other land (approximately 0.25 hectares) was allegedly being used unlawfully for the turning and manoeuvring of vehicles in association with the lawful use as a scrap metal yard could not (on any sensible view) convert a scrap metal yard operating lawfully on the 0.4 hectare site into an “industrial estate development project” on a site in excess of 0.5 hectares.

When we put our concerns about these matters to Mr Hyam, he initially sought to persuade us that if the scrap metal yard did not fall within paragraph 10(a) in column 1 in the table, then it fell within paragraph 11(e) “storage of scrap iron including scrap vehicles.”

In my judgment, paragraph 11(e) far from assisting the appellant’s case tends only to confirm the view that a scrap metal yard (the planning permission for the southern part of this site permits the storage of scrap metal) is an “other project” which falls within paragraph 11 of the table if it meets the applicable threshold, and is not an “infrastructure project” within paragraph 10. Mr Hyam submitted that the descriptions of development in column 1 of the table were not mutually exclusive. Whether or not that is so, the fact that the storage of scrap iron is expressly referred to in paragraph 11 as an “other project” is a powerful indication that it is not an “infrastructure project.” It is common ground that the area of deposit or storage at the scrap metal yard does not exceed the 0.5 hectare threshold in column 2 in respect of paragraph 11(e). If a particular kind of project is expressly referred to in column 1 of the table, but the applicable threshold is not met, it would not be a proper interpretation of the table to seek to sidestep the threshold that is specifically applied by column 2 to that kind of project by seeking to re-categorise the project under a more general description of development such as “industrial estate development project”.

It follows that this appeal fails at the first hurdle. Patterson J rightly concluded that the claim was unarguable. This conclusion is not in the least surprising if the Regulations are read as a whole and if due regard is paid to the underlying purpose of the EIA Directive. It is not the intention of the EIA Directive to apply the fairly elaborate environmental assessment regime to each and every planning application however minor, and commercial planning applications do not come much more minor than this very small scale change of use from car sales to car hire. The Regulations (and the EIA Regulations which are currently in force) must be applied with a degree of common sense, recognising that the EIA regime is intended to apply only to a limited number of projects; namely, those projects of which it can sensibly be said that they may have a significant effect on the environment. The proposed change of use in the present case is nowhere near that league. I would therefore dismiss this appeal.

I agree.

I also agree.