Evans v First Secretary of State & Ors

This is an application made by the second defendant, the London Metropolitan University (“the University”) for summary judgment against the claimant Mr Steven Evans (“the Claimant”) under CPR Part 24 on the ground that the Claimant’s application (“the Application”) under section 288 of the Town and Country Planning Act 1990 (“the Act”) has no real prospect of success and that there is no other compelling reason why the issue raised should be disposed of at a trial. The First Defendant the First Secretary of State (“the Secretary of State”) and the Third Defendant the London Borough of Islington (“the Borough”) have been given notice of the Application but have not attended the hearing.

By the Application the Claimant seeks to challenge a decision (“the Decision”) of an Inspector appointed by the Secretary of State (“the Inspector”) given by a decision letter dated the 8^th November 2002 (“the Letter”) made following a six day public inquiry. The Inspector by the Decision allowed the University’s appeal against a decision of the Council as local planning authority and granted planning permission for demolition of existing buildings and construction of additional student residential accommodation (“the Development”) at Tufnell Park Halls of Residence, Huddleston Road, London N7 (“the Property”). The Claimant makes the challenge on the ground that the Inspector acted unlawfully in failing to consider or require an environmental impact assessment (“an EIA”) of the Development within the meaning of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”). The University on this application contends that the Secretary of State made a screening direction (“the Direction”) that the Development is not an EIA development, that accordingly the Development did not require an EIA and that, as under Regulation 4(3) of Regulations the Direction is determinative, the Application is misconceived and bound to fail.

The Development involves the proposed demolition of some existing buildings and the construction of an additional hall of residence alongside an existing one to provide urgently required further accommodation for 552 students attending the University. On the 29^th May 2001, the University applied to the Council, as local planning authority for the Property, for planning permission for the Development. By a decision notice dated the 24^th July 2001 the Council refused that application. The University appealed under section 78 of the Act to the Secretary of State against that refusal. The Secretary of State appointed an Inspector to determine that appeal. Following the filing of the appeal, in exercise of his powers under Regulation 9(1) the Secretary of State considered whether the Development was “EIA Development” within the meaning of the Regulations. By letter dated the 5^th March 2002, the Planning Inspectorate wrote to the Council informing it of the Direction. The material part of the Direction provided as follows:

“The development proposed, namely demolition of some existing buildings and construction of additional student residential accommodation, falls within the description at paragraph 10b of Schedule 2 to the 1999 Regulations, and exceeds the threshold in column 2 of the table in that schedule, but in [the] opinion of the Secretary of State, having taken into account the criteria in Schedule 3 to the 1999 Regulations, would not be likely to have significant effects on the environment by virtue of fact such as its nature, size or location.

Accordingly, in exercise of the powers conferred on him by regulations 9(1) and 6(4) of the 1999 Regulations, the Secretary of State hereby directs that the development for which planning permission is sought by application reference number P011089 is not EIA development.”

Following the Direction, the Inspector appointed by the Secretary of State to determine the University’s appeal held a public inquiry which sat for six days on the 4^th and 5^th July, the 30^th September and the 1^st, 2^nd and 18^th October 2002. Both the University and the Council were represented by planning counsel and called a number of expert witnesses to deal with the issues raised by the appeal. In addition, the Inspector heard evidence and representations from a number of local residents and interested persons, including the Claimant. Neither during the course of the public inquiry, not before nor after, did the Claimant (or any other person) seek to suggest that the Development should be the subject of an EIA under the Regulations or that the Inspector should give consideration to this issue.

By the Letter of the 8^th November 2002, the Inspector rejected objections of the Claimant and the Council and granted planning permission for the Development. In the course of his Appeal Decision (“the Appeal Decision”) (at paragraph 39) the Inspector stated as follows:

“Taking account of all these matters, especially the design, size, scale and external appearance of the proposed building, I conclude that although it would have a significant effect on the character and appearance of the surrounding area, this would not be an adverse impact. I further conclude the proposed development would not therefore conflict with the purposes of the relevant parts of Policies H12, H19, Ed 9, D1, D3, D4 and D5.”

Save for the claim made on this application there has been no challenge to the Inspector’s decision pursuant to section 288 of the Act. Likewise there has been no challenge to the Direction.

By Claim Form dated the 19^th December 2002, the Claimant challenged the Decision solely on one ground only, namely that the Inspector had erred in law in failing to consider or require an EIA. The Claim Form was accompanied by Particulars of Claim, paragraph 14 of which particularises the errors alleged to have been made by the Inspector. These for the first time raised the suggestion that there should have been an EIA prior to planning permission being granted for the Development. Paragraph 14 reads as follows:

“(1)

In determining the appeal in the light of the evidence submitted to the inquiry and the conclusions drawn by him based on that evidence, the First Defendant’s Inspector failed to consider whether an environmental impact assessment should be required before granting permission; and/or

(2)

In the light of the evidence submitted to the inquiry and the conclusions drawn by him based on that evidence, the First Defendant’s Inspector failed to consider whether to exercise his power under regulation 9(2) of the 1999 Regulations; and or

(3)

In the light of the evidence submitted to the inquiry and the conclusions drawn by him based on that evidence, the First Defendant’s Inspector acted unreasonably and unlawfully in granting planning permission without first requiring an environmental impact assessment of the Development.”

Article 2(1) of Directive 85/337/EEC 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.”

The Regulations gave effect to the Directive. The core obligation imposed on Member States by the Directive is given effect by Regulation 3(2) which, with Regulation 3(1), reads as follows:

“Prohibition on granting planning permission without consideration of environment information

This regulation applies

(a)

to every EIA application received by the authority with whom it is lodged on or after the commencement of these Regulations; and …

(2)

The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”

In a word, the prohibition contained in Regulation 3(2) applies to every EIA application lodged after the commencement of the Regulations. Accordingly planning permission cannot be granted pursuant to an “EIA application” (the application to which the regulation applies) unless the required EIA assessment has been carried out. The term “EIA application” is defined in Regulation 2 as an application for planning permission for “EIA development”, and “EIA development” is defined (so far as material) as development which is either “a Schedule 1 application or is a Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. The term “Schedule 2 development” is likewise defined. It is sufficient to say that it is common ground that the Development is a Schedule 2 development.

Regulation 4, which makes general provisions relating to screening, (so far as material) provides as follows:

“(3)

A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development.

(4)

The Secretary of State may direct that particular proposed development is exempted from the application of these Regulations in accordance with Article 2(3) of the Directive (but without prejudice to Article 7 of the Directive)….

(5)

Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.

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

The term “screening direction” is defined in Regulation 2 as a direction by the Secretary of State whether development is EIA development.

Regulation 6(4) provides that the Secretary of State on the request of a person minded to carry out development shall make a screening direction. Regulation 9(1) provides that on consideration of an appeal against a refusal to grant planning permission, if it appears to the Secretary of State that (1) the relevant application is a Schedule 1 or Schedule 2 application (2) the development in question has not been the subject of a screening opinion or screening direction and (3) the relevant application is not accompanied by an “environmental statement” (all three of which conditions were satisfied in this case), the Secretary of State shall make a screening direction under Regulation 6(4) as though the request required under that regulation had been made. It was pursuant to Regulation 9(1) that the Secretary of State made the Direction.

Regulation 9(2) reads as follows:

“Where an inspector is dealing with an appeal and a question arises as to whether the relevant application is an EIA application and it appears to the inspector that it may be such an application, the inspector shall refer that question to the Secretary of State and shall not determine the appeal, except by refusing planning permission, before he receives a screening direction.”

The thrust of the three complaints made by the Claimant in the Particulars of Claim is the failure of the Inspector to consider whether an EIA was required and (in breach of his duty under Regulation 9(2)) to refer that question to the Secretary of State before granting planning permission. In support of these complaints it is argued that by his own findings in paragraph 39 of the Appeal Decision the Inspector effectively held that the Development was or at least might be an EIA development.

The Court of Appeal in Smith v. Secretary of State for the Environment Transport and Regions [2003] EWCA 262 at paragraph 22 held that the approach to the Regulations is coloured by the Directive, the purpose of which is described in the speech of Lord Hoffmann in Berkley v. Secretary of State for the Environment [2001] 2 AC 603 (“Berkley”). Lord Hoffmann in Berkley held that the Directive requires that a planning authority shall not make a planning decision which might affect the environment without the information obtained by an EIA and the opportunity afforded to the public to express an opinion on the issue; and that the citizen is accorded by the Directive a directly enforceable right both to a fully informed decision on the substantive issue and to express its opinion on the environmental issue.

This part of the reasoning in Berkley has no direct application in this case, if (as I hold to be the case) under Regulation 4(3) the Direction remained in force and was definitive on the issue whether the Development might affect the environment. The reasoning in Berkley however goes further and in accordance with Regulation 3(2) (read in the light of the Directive) requires the Secretary of State before giving a direction whether a development is an EIA development to give consideration whether the proposed development falls within the ambit of Schedule 1 or Schedule 2 to the Regulations so as to require the assessment necessary under the Directive for projects likely to have significant effects on the environment and in making that determination to take into account such of the selection criteria set out in Schedule 3 as are relevant to the development. Implicit in the Direction is an assurance by the Secretary of State that he has undertaken this exercise. In performing this exercise the Secretary of State discharges his duty under the Directive, and where the direction is to the effect that a development is not an EIA development, the application for planning permission for that development ceases to be an EIA application and the Regulations (and in particular Regulation 3(2)) accordingly cease to apply to it. There is therefore no requirement for any EIA assessment. The decision of the Secretary of State must be reached according to law and is open to challenge for any failure in this regard in judicial review proceedings. There has been no such challenge to the Decision in this case.

The Claimant seeks on the Application in this case to circumvent the conclusion which I have reached on two grounds. The first contention is that the finding of the Inspector in the passage in the Appeal Decision which I have quoted constitutes (for all practical purposes) a determination that the Development is an EIA development, and that the finding contradicts (and therefore cancels) the Direction and accordingly brings back into play (if it ever ceased to be in play) Regulation 3(2) and the prohibition on the grant by the Inspector of planning permission without an EIA. I reject this contention on two grounds. The first is that in the light of the Direction, unless and until the Direction was varied or cancelled, it was not open to the Inspector in arriving at the Decision to consider or decide whether the Development was an EIA development: that issue was already conclusively determined by the Direction and his duty was to decide the appeal in the light of that fact. That was plainly and correctly the view both of the Inspector and all who participated in the appeal. The second is that in the Appeal Decision and in particular in the passage quoted, the Inspector did not have in mind or purport to determine whether the Development was likely to have a significant effect on the environment by virtue of factors such as its nature, size or location with reference to the selection criteria set out in Schedule 3. He merely stated that the Development had a significant effect on the character and appearance of the surrounding area: he made no reference to any effect on the environment. The Letter merely recognised and reflected the fact that considerations which fell short of requiring an EIA assessment were relevant factors in determining whether to grant planning permission.

The Claimant contended that it was at all times open to the Secretary of State in pursuance of his duty under Regulation 3(2) to reopen the question whether an EIA was required notwithstanding a previous direction that it was not. This is clearly so. The Department of the Environment Transport and the Regions Circular 02/99 “Environment Impact Assessment” specifically states that it is possible for the Secretary of State to cancel or vary an earlier direction if he has grounds for doing so. That is an option open to the Secretary of State at any time before the grant of planning permission and an option which he is duty bound to have in mind and of which it is open to an inspector to remind him. But there is no reason to believe that the Secretary of State did not have this in mind and the Inspector had no occasion to remind him of the option. The Secretary of State has never considered that he had grounds for any such variation or cancellation. There has been no request for him to make any such variation or cancellation. There has been no challenge to the Direction nor has any application been made to the court for an order requiring him to reconsider the Direction or to cancel or vary it. Nor do there appear to be any grounds for any such challenge or application. All that has happened is that the Claimant has challenged the subsequent grant of planning permission on the ground that the Inspector made a finding of fact which might be relevant to (but on no basis can be conclusive of) the issue whether the Development was an EIA development.

There is a further subsidiary ground why the Claimant’s application must fail. His invocation of Regulation 9(2) is misconceived. Regulation 9(2) and the duty thereby imposed on an Inspector is only brought into play if in the course of his dealing with an appeal (1) a question arises whether the relevant application is an EIA application and (2) it appears to the Inspector that it may be such an application. It is clear (as it is common ground) that neither of these conditions were ever satisfied. Reading Regulation 9(2) with Regulation 3(2) and in the light of the implied duty flowing from the Directive, in the case of an application where no contrary direction has been made and no exemption has been granted by the Secretary of State the Inspector is legally obliged to consider whether the application is an EIA application and of his own motion to raise the question if he thinks there is any real possibility that it may be an EIA application. The first condition laid down in Regulation 9(2) will be satisfied if the Inspector raises the issue himself. The Inspector must then determine in the light of the evidence and submissions adduced whether the second condition is satisfied i.e. whether in the light of the evidence and submissions he is satisfied that the application may indeed be an EIA application. If the two conditions are satisfied, the duty of the Inspector under Regulation 9(2) to refer to the Secretary of State is enforceable by a person interested whether or not he fails to raise the issue at the hearing before the Inspector and it is open to him to challenge the Inspector’s decision on this ground. But, as I have already said, in this case neither condition was ever satisfied and accordingly section 9(2) never came into play.

I accordingly decide that the Application has no real prospect of success: indeed it is doomed to failure. There is no compelling reason why the issue should be disposed of at trial: indeed there is a compelling reason for a determination at this stage of the litigation so that the Development can be allowed to proceed at the earliest available date and the urgent need for accommodation intended to be provided by the Development can be satisfied as soon as possible. I therefore direct that summary judgment be entered for the University under CPR Part 24.