Jones, R (on the application of) v Mansfield District Council

By these proceedings the claimant challenges the grant of outline planning permission for the development of an industrial estate on a 28.4 hectare site off Abbot Road, Mansfield. The claimant lives opposite the site and at present has uninterrupted views of open countryside and uses the site for walks and other recreational purposes. Understandably she objects to the development. The legal issue, however, is whether it was reasonable for the defendant council to decide that an environmental impact assessment (“EIA”) was not required before planning permission could be granted; in particular, whether the council could reasonably conclude in the circumstances that the development was not likely to have significant effects on the environment.

The council originally determined to grant outline planning permission in November 2001, but the claimant challenged the validity of that decision on the ground that it had been reached without proper consideration of whether an EIA was required. The council agreed to reconsider the question of an EIA and the challenge was withdrawn. On 25 February 2002 the council’s Planning Committee reached two decisions: first, that an EIA was not required, and secondly that planning permission should be granted. The claimant challenges the first decision on the ground that it was unreasonable and unlawful, and the second decision on the ground that the grant of planning permission was flawed by the unlawful decision not to require an EIA.

The relevant regulations are the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Those regulations have been replaced by 1999 regulations in respect of applications made after 15 March 1999. The 1999 regulations are materially the same. Both sets of regulations implement Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment.

Regulation 4(2) of the 1988 Regulations provides:

“The local 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 state in their decision that they have done so.”

The question in this case is whether the application was one to which the regulation applied. By regulation 4(1), the regulation applies inter alia to any “Schedule 2 application”, which is defined by regulation 2(1) in these terms:

“'Schedule 2 application' means … an application for planning permission … for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location.”

It is common ground that the development in this case is of a description mentioned in Schedule 2, namely “an industrial estate development project” (Schedule 2, paragraph 10(a)) and that it is not exempt development. Regulation 4 therefore applies to it if, but only if, it “would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location”.

Whether it would be likely to have such effects is a matter for decision by the local planning authority, subject to review on Wednesbury grounds: Berkeley v. Secretary of State for the Environment [2001] 2 AC 603, 610 G-H and 614G-615A, R v. Rochdale Metropolitan Borough Council, ex parte Milne [2001] Env LR 406 at 433 para 106, R (Malster) v. Ipswich Borough Council [2001] EWHC Admin 711 at paras 57-70.

Although they were not directly invoked in this case, it is relevant to note the provisions of regulation 5 concerning the giving of "screening" opinions in advance of an application for planning permission. By regulation 5(1), a person who is minded to apply for planning permission may ask the local planning authority to state in writing whether in their opinion the proposed development would be within a description mentioned in Schedule 1 or Schedule 2 and, if so, (a) within which such description and (b) if it falls within a description in Schedule 2, whether its likely effects would be such that regulation 4 would apply. By regulation 5(2), such a request must be accompanied by inter alia (a) a plan sufficient to identify the land and (b) a brief description of the nature and purpose of the proposed development and of its possible effects on the environment. By regulation 5(3) the authority shall, if they consider that they have not been provided with sufficient information to give an opinion on the questions raised, notify the person making the request of the particular points on which they require further information. Regulation 5(4) provides that the authority shall respond to a request within three weeks or such longer period as may be agreed in writing with the person making the request. Regulation 6 contains corresponding provisions as to the giving of pre-application directions by the Secretary of State.

Where it is decided that an application for planning permission is a Schedule 2 application so that regulation 4 applies to it, the obligation in regulation 4(2) is, as indicated, to take the “environmental information” into consideration. “Environmental information” is defined in regulation 2(1) as “the environmental statement prepared by the applicant or appellant …, any representations made by any body required by these Regulations to be invited to make representations or to be consulted and any representations duly made by any other person about the likely environmental effects of the proposed development”.

An “environmental statement” is defined as such a statement as is described in Schedule 3, which provides so far as material:

“1.

An environmental statement comprises a document or series of documents providing, for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out, the information specified in paragraph 2 (referred to in this Schedule as “the specified information”).

2.

The specified information is –

(a)

a description of the development proposed, comprising information about the site and the design and size or scale of the development;

(b)

the data necessary to identify and assess the main effects which that development is likely to have on the environment;

(c)

a description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference to its possible impact on: human beings; flora; fauna; soil; water; air; climate; the landscape; the interaction between any of the foregoing; material assets; the cultural heritage;

(d)

where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects;

(e)

a summary in non-technical language of the information specified above.”

In R v. Rochdale MBC, ex parte Tew [2000] Env LR 1 at 20, Sullivan J referred to the recitals of an amending directive, 97/11, as containing a convenient summary of the aims and importance of the original Directive: in particular, that it "aims at providing the competent authorities with relevant information to enable them to take a decision on a specific project in full knowledge of the project's likely significant impact on the environment".

In Berkeley Lord Hoffmann, referring to the purposes of the Directive, emphasised the importance of an environmental statement as a means of informing members of the public and enabling them to form their own judgments on, and to express an opinion on, the significance of the environmental issues raised by a proposed development. The context was a failure by the Secretary of State, as decision-maker, to comply with the basic obligation to consider whether an EIA was needed. That was held to be a fatal flaw, irrespective of whether the outcome would have been the same if an EIA had been required or whether the decision-maker had all the information necessary for the purposes of reaching a proper decision on the environmental issues. Although focusing on a different point from that raised in the present case, Berkeley underlines the importance of an EIA and, therefore, the importance of reaching a proper decision as to whether an EIA is required.

Department of the Environment Circular No.15/88 on Environmental Assessment summarises the background to the 1988 Regulations and gives guidance on their application. In a section on the identification of relevant Schedule 2 projects, the circular points out in paragraph 18 that the basic question to be asked is whether a project is likely to give rise to significant environmental effects. Paragraph 19 states that as a starting point authorities will find it helpful to study the terms of Schedule 3, which sets out the scope of the information which may be called for where an environmental statement is to be provided and thus indicates the sort of factors which are relevant in considering whether environmental assessment is necessary in Schedule 2 cases. The circular goes on to state:

“20.

In general terms, the Secretary of State’s view is that environmental assessment will be needed for Schedule 2 projects in three main types of case:

(1)

for major projects which are of more than local importance;

(2)

occasionally for projects on a smaller scale which are proposed for particularly sensitive or vulnerable locations;

(3)

in a small number of cases, for projects with unusually complex and potentially adverse environmental effects, where expert and detailed analysis of those effects would be desirable and would be relevant to the issue of principle as to whether or not the development should be permitted.

21.

The Secretary of State’s view is that the number of projects falling within these categories will be a small proportion of all Schedule 2 projects; and that in most cases there should be little difficulty in deciding whether or not environmental assessment is needed. It must be emphasised that the basic test of the need for environmental assessment in a particular case is the likelihood of significant environmental effects, and not the amount of opposition or controversy to which a project gives rise, except to the extent that the substance of opponents’ arguments indicates that there may be significant environmental issues.”

After examining each of those categories, the circular refers to indicative criteria and thresholds. It states:

“30.

Given the range of Schedule 2 projects, and the importance of locational factors, it is not possible to formulate criteria or thresholds which will provide a simple test in all cases of whether environmental assessment is or is not required. The most that such criteria can offer is a broad indication of the type or scale of the project which may be a candidate for assessment - and conversely, an indication of the sort of project for which assessment is not likely to be required.

31.

Appendix A to this circular lists, for certain of the categories of projects in Schedule 2, criteria and thresholds of this kind which are intended to indicate types of cases in which, in the Secretary of State’s view, environmental assessment may be required under the Regulations. These are only indicative: the fundamental test to be applied in each case is the likelihood of significant environmental effects. Projects which exceed these thresholds will not in every case require assessment; conversely, there can be no automatic presumption that projects falling below these thresholds will never give rise to significant effects, particularly where the proposed site is in a sensitive area. Nor should the absence of a threshold for a particular type of Schedule 2 development be taken to imply that all projects of that type can be assumed not to have significant effects. For some types of project the issue of significance is bound to be a matter of judgment and quantified criteria have little relevance.”

Paragraph 13 of Appendix A provides that industrial estate developments may require environmental assessment where (i) the site area of the estate is in excess of 20 hectares or (ii) there are significant numbers of dwellings in close proximity to the site of the proposed estate, e.g. more than 1,000 dwellings within 200 metres of the site boundaries.

The Planning Committee on 25 February 2002 had before it two reports prepared by the Council’s Head of Planning Control, one dealing with environmental assessment and the other with the grant of planning permission if the committee decided that environmental assessment was not required.

The first report advised that an environmental assessment was not required, but sought a decision from the committee on that question. It reminded members of the background and then explained the two basic steps involved in determining whether an assessment was required: first, to determine whether the proposed development fell within a description of a development in Schedule 1 or Schedule 2 (which, as the committee was told, it did); secondly, to determine whether the development was likely to have significant effects on the environment.

On the question of significant effects, the report referred to relevant parts of Circular 15/88 which I have mentioned above. As regards the indicative advice in paragraph 13 of Appendix A to the circular, it stated that “[a]s this site is 28.4 hectares in area and there a number of houses in proximity to the site, guidance would in the first instance seem to suggest that Environmental Assessment is required”. It went on, however, to point out that the number of dwellings within 200 metres of the site was significantly less than the figure of 1,000 dwellings referred to in the circular, and to cite the further advice in paragraph 31 of the circular that thresholds are only indicative and that the fundamental test to be applied in each case is the likelihood of significant environmental effects.

The evidence that had led the planning officer to conclude initially that environmental assessment was not required was stated to be as follows:

“1.

The concept behind the Abbot Road scheme is for a low density development of employment buildings with significant areas of strategic planting. Indeed the Local Plan Inspector recommended about 40% of the site should be landscaped. Accordingly the developed area of the site is likely to be significantly below the 20 hectare threshold referred to in the Circular.

2.

The Local Plan Inspector drew comparison with another proposal and referred to the ‘far less significant intrusion into open countryside’ of the proposal as it would be bounded by the Western Bypass.

3.

Finally in his report the Local Plan Inspector found that Abbot Road could accommodate the traffic generated without causing significant environmental harm.

4.

I am of the opinion that the project is a local project and not of wider significance.

5.

I am of the opinion that the location is not a particularly sensitive or vulnerable location.

6.

I am of the opinion that the project is not unusually complex.

These points are relevant for the Council to bear in mind in its determination of whether EA is required against the criteria of the 1988 Regulations.”

After referring to the provisions of the 1999 Regulations, on which nothing turns for present purposes, the report proceeded to inform the committee of the substance of representations by third parties. I shall quote a few passages from the several pages of the report that set out those representations:

“Nottinghamshire County Council Rural Environment Group

….

It is acknowledged that the site is intensively farmed arable land with little conservation value, but there are other areas of concerns raised and these are summarised as follows:

(a)

although there are no designated statutory or non-statutory wildlife areas on the site, there may be some species or habitats that could be of conservation concern;

(b)

the proposal may lead to the loss of hedgerows which are valuable habitats and wildlife corridors;

(c)

the ecological value of the site has not been adequately assessed, not being comprehensive due to when the surveys were carried out;

…

(g)

no details of what would happen to the trees identified on the site, which can provide important wildlife habitats;

(h)

insufficient information to determine the application;

(i)

the site is considered important as a roosting site for Golden Plovers and it is felt that not enough information has been provided on alternative sites available in the area, if this site is developed ….

RSPB

Object to the proposal the reasons being summarised as follows:

(a)

the loss of the site for use by Golden Plovers should be a material consideration;

…

(d)

further studies should be carried out over a wider area to establish the likely impact of the development on the Plover population;

(e)

the argument that birds will move to other areas is not sustainable;

(f)

landscaping of the site would not be suitable for the Golden Plovers

…

Nottinghamshire Wildlife Trust

Several comments have been made by this organization at different periods during the processing of this application raising various concerns and objections and these can be summarised as follows:

…

(g)

It is believed that there are bats in the vicinity and as they are protected under the Wildlife and Countryside Act, a comprehensive bat survey should be undertaken of the area including trees, farm buildings and outhouses to ascertain their status and distribution, to assess the potential effects from the development and put forward measures for their protection;

(h)

several birds of high conservation concern have been seen at the site, therefore a full bird breeding survey should be carried out at the appropriate time of year to evaluate the status and distribution of protected and common birds on the site, potential impact, and measures for their protection and enhancement. The surveys and studies undertaken by the applicants fail to offer adequate assessments or appropriate mitigation measures, specifically in respect of the Golden Plovers for which this is a regionally important winter migration site ….

North Notts Bat Group

Although there are no records of the farm itself, there are records of bats within a few miles of the site. The ecological survey identified that the site and the farm buildings may be important for bats. A full survey of the building should be carried out before any works are commenced and if it is established that there are bats using the buildings for a roost, the appropriate licence from the Department of the Environment, Transport and Regions must be applied for."

The report informed members that all the representations were available for inspection. The view was expressed that in general terms most of the objections raised were matters of planning judgment and did not raise issues of fact which would alter the officer’s assessment of the need for an environmental assessment. The report went on to deal specifically, however, with the concerns expressed in relation to Golden Plovers:

“The Golden Plovers

One issue to emerge as a consequence of public consultation has been the significance of the development upon the habitat of Golden Plovers. Evidence concerning this was not before me at the time that I made my determination in 1998 that Environmental Assessment was not required.

Nevertheless a request was made to the applicant to undertake an ecological study to assess the potential impact of the development on the site and the surrounding area was made and the applicant has provided a report of the ecological study and additional information specifically relating to Golden Plovers.

Once the relevant information was received English Nature were consulted and they have the following observations.

‘Golden Plover in the context of this development proposal is protected only in so far as intentional killing and injuring under Part I of the Wildlife and Countryside Act 1981 (as amended). However it is unlikely that operations associated with the development will cause offences under this legislation. Consequently, paragraph 47 of PPG9 may therefore not apply to Golden Plover in this case.

Golden Plover is, however, listed on Annex 1 of the European Birds Directive 79/409/EC and the number of birds wintering around Penniment Farm, Mansfield are at least of local importance in a Nottinghamshire context. Even so, it is far from clear whether the proposed development would have a measurable impact upon the current Golden Plover numbers within the wider area available to this species in Nottinghamshire. The amount of Golden Plover wintering habitat that would be lost is also relatively small in terms of the amount available to the species within Nottinghamshire. In addition, it is likely that farming practices have far greater influence on wintering Golden Plovers than the loss of land to development. It is on this basis that English Nature considers that there are no substantiated grounds of a statutory nature on which we could object to this application.’

I consider that the highlighted comment of English Nature about the lack of clarity of any measurable impact enables me to advise that the development will not have a significant environmental impact upon the Golden Plover habitat” (original emphasis).

Finally, the committee was advised that it must consider all the information in the report and go through the requisite steps to reach a determination on whether an environmental statement was required.

In the second report, prepared for the purposes of the committee’s consideration of the application for planning permission in the event that environmental assessment was not required, there was a lengthy section dealing with ecological issues. Again it is necessary to quote parts of it:

“There are certain conditions on the site that are important, in particular those which encourage its use by Golden Plovers and to a lesser extent by Lapwings. Information received from the applicant and various consultees, suggests that the site is an important roosting/feeding site for Golden Plover. It is important to the Plovers due to the character of the site, with its large open arable fields and few hedgerows or other features that could conceal potential predators. As with many rural habitat situations, this environment has been created by farming practices, over which the Local Planning Authority has little control and which could easily change without notice, negating any value the site currently has for the Golden Plovers. It is clear from the information received, and comments made, the full impact on the Golden Plovers by the development of the site cannot be accurately assessed, as it is considered as being only a small part of a much wider area used by them. It is also difficult to identify appropriate mitigation measures that could be carried out to address the loss of this site to development ….

It is clear in this instance that there would be unavoidable loss of the fields used by the Golden Plovers and that it would not be possible to recreate the particular character of the site to compensate the loss. The applicant has offered in the form of a unilateral undertaking, to carry out further studies in and around the area of the proposed development site, in order to gain a better understanding of the Golden Plovers movements in the locality, which could then be used generally to assess the impact of this and other developments in the area. They have also suggested other initiatives to protect and enhance the Golden Plover habitats, but these would involve third parties playing an active role. The nature conservation bodies are of the opinion that this is not an appropriate approach ….

Other ecological issues raised include the loss of hedgerows, bat roosts and habitats/feeding sites for various other species of birds and animals of conservation concern ….

Although there is no clear evidence that bats use either the farm buildings or trees in the area, there is every possibility that they could. Even if this is the case there is no reason why the site cannot be developed subject to activities affecting possible bat habitats and roosts being carried out at the appropriate time of year. Further to this, various measures can be carried out to encourage their establishment in the locality.

A criticism of the ecological survey submitted, is that it does not give a full annual assessment of the site and there may be species of flora and fauna that may be present which have not been recorded. Since the application was first considered, the applicants have commenced some additional survey works, so that all species and habitats including the river catchment area, can be considered, in the preparation of appropriate mitigation measures that will be required. A commitment to the additional ecological survey work is also given in the unilateral undertaking.

…

Although it is acknowledged that the Golden Plovers may be affected by this proposal, I am of the opinion that there will be some benefits for wider nature conservation and that there are other overriding material factors, which support the proposal to develop this site.”

The report recommended the grant of outline planning permission subject to conditions and completion of section 106 agreements.

Owing to the brevity of references to them in the planning officer's report, I should also note that the material before the council included three reports on ecological surveys carried out by consultants on behalf of the developer. The first, dated November 1998, related to a full ecological survey and reported that the value of the land to wildlife was relatively low and that there was no evidence of any protected species on site. Recommendations for further work were subsequently received from Nottinghamshire Wildlife Trust and others. This led to the commissioning of a second report, dated July 2000, which dealt inter alia with birds and bats (identifying potential bat roosts but no absolute evidence of the presence of bats). Following the expression of further concerns about golden plovers, a third report, dated February 2001, provided an assessment of the significance of the site with regard to over-wintering golden plovers. The report concluded that there was no reason to presume that the over-wintering golden plover population would suffer significant harm through development of the site. Although the site was one of a number of favoured roost/rest sites, it was not a significant food resource.

At the meeting on 25 February the committee first resolved, in line with the officer's first report, that the proposed development was not a development likely to have significant effects on the environment and therefore did not require an environmental statement, and then resolved to grant planning permission in accordance with the recommendation in the officer’s second report.

The conditions on which planning permission was granted included the following:

“(12)

No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a scheme of landscaping…

(13)

A landscape management plan … shall be submitted to and approved in writing by the Local Planning Authority prior to the occupation of any development on site or any phase of the development, whichever is the sooner ….

(14)

Site clearance shall not take place during the bird breeding season March-July unless otherwise agreed in writing by the Local Planning Authority.

(15)

Demolition of buildings on site shall only be undertaken in the months of September-October unless otherwise agreed in writing by the Local Planning Authority.

(16)

Any trees to be removed from the site shall be felled in sections and lowered to the ground by ropes. These works shall only take place in the months of September and October in accordance with details which shall be submitted to and approved in writing by the Local Planning Authority.”

Conditions 12 and 13 were expressed to be in the interests of visual amenity, Conditions 14 to 16 in the interests of nature conservation. In addition to the conditions there were a number of Notes, including the following:

“(9)

The applicant is advised that the landscaping of the site must be undertaken in a manner which will encourage nature conservation and bio-diversity in the locality ….

(11)

The applicant is advised that any survey must include all species of birds and bats that may be using the existing buildings, trees and hedges on the site. The mitigation measures must also include a programme of management for existing trees and hedges on the site ….

(14)

… English Nature must be notified if the proposal is likely to destroy or disturb bat roosts.”

A unilateral undertaking entered into by the developer provided in the third schedule that:

“Prior to the Commencement of Development of the Land (including tree felling, demolition works or rubbish clearance), a full ecological survey shall be undertaken to establish all ecological interests on the site and must include all fauna and flora elements. Any such survey shall cover a period of one calendar year and include details of all the trees and hedges, including type, position and condition, a bat survey to establish the level of occupancy and use, following which, the results of that survey and any details of appropriate mitigation measures and aftercare measures (including details of implementation phasing of new plant and animal habitat creation) to protect and/or replace/relocate/enhance habitats, ecosystems or any other elements important for nature conservation shall be submitted to and approved in writing by the Council. Thereafter the scheme shall be implemented as approved.”

Mr Wolfe, on behalf of the claimant, submitted that the EIA regime is designed to ensure that the full environmental effects of a proposal are taken into account before planning permission is granted. But the council here, faced with uncertainty about the potential environmental impacts of the proposed development, granted permission nonetheless, leaving the assessment of various environmental impacts to be undertaken after permission had been granted. That approach was unlawful.

Developing that submission, Mr Wolfe contended that a local planning authority is subject to a "bounding principle" whereby an application for a development falling within Schedule 2 must be treated as one to which the EIA regime applies unless the authority is confident or positively satisfied that the development will not have significant effects on the environment (whether because there will be no potential effects or because the authority is satisfied that potential effects can be controlled by conditions). If there is uncertainty about the position, then the EIA regime must be applied. Once the authority says "we are not sure" or takes the view that further assessments are required in order to assess the environmental effects and to see what measures might be taken to deal with them, the case falls outside the bounding principle and the authority cannot lawfully decide that the EIA regime does not apply. That is because the public is entitled to be informed of likely significant effects and mitigation measures, and to make representations about them, before a decision is made on the grant of planning permission. Once permission is granted it is too late. To allow that situation to arise would be to thwart the purposes of the Directive.

In support of those submissions, Mr Wolfe cited a passage in R v. Rochdale MBC, ex p. Tew [2000] Env LR 1 at 28-29, where Sullivan J stated, in relation to the requirement in regulation 4(2) to take the "environmental information" into account in a case where regulation 4 applies:

“A necessary part of that environmental information is the environmental statement which must contain the specified information whether or not the application is outline. It is no answer to say that some of the specified information will be provided in due course at the reserved matters stage. This, no doubt, reflects the role of an outline planning permission under the 1990 Act. Once outline planning permission has been granted, the principle of the development is established.

… Moreover, it is clear from the comprehensive list of likely significant effects in para 2(c) of Sched 3, and the reference to mitigation measures in para 2(d), that it is intended that in accordance with the objectives of the directive, the information contained in the environmental statement should be both comprehensive and systematic, so that a decision to grant planning permission is taken 'in full knowledge' of the project's likely significant effects on the environment. If consideration of some of the environmental impacts and mitigation measures is effectively postponed until the reserved matters stage, the decision to grant planning permission would have been taken with only a partial rather than a 'full knowledge' of the likely significant effects of the project ….”

Reference was also made to passages in the judgment of Sullivan J in the follow-up case, R v. Rochdale MBC, ex p. Milne [2001] Env LR 406, in which the court upheld a decision to approve a revised application for outline planning permission following the quashing of the grant of permission in respect of the original application in Tew. For example:

“114.

The local planning authority are entitled to say, 'We have sufficient information about the design of this project to enable us to assess its likely significant effects on the environment. We do not require details of the reserved matters because we are satisfied that such details, provided they are sufficiently controlled by condition, are not likely to have any significant effect'.

….

120.

Acknowledging the uncertainties that are inherent in a project of this nature and scale Mr Gilder explained that the environmental statement had considered 'the worst environmental impacts which would arise from the development, the so-called worst case'.

….

132.

Mr Howell's criticisms of the proposed mitigation measures illustrate the unreality of the applicant's approach. It is said that there is no 'description of the measures proposed', merely a statement of objectives. This criticism stems from an over-literal interpretation of the words in paragraph 2(d). In the case of the bats and the greater crested newts that may be on this site …, I do not see why the 'measures envisaged to avoid, reduce or remedy' possible harm to them should not comprise the undertaking of further surveys, discussion of the findings of those surveys with English Nature and devising detailed mitigation in the light of those discussions. Where there are well established mitigation techniques for dealing with disturbance to the habitat of certain creatures, such a description will be perfectly adequate. Indeed, it is difficult to see what more could be done.

….

134.

In short, there was 'full knowledge', in the sense of there being available as much information as could reasonably be expected at this stage, about this kind of mitigation measure.

135.

I repeat the view expressed in Tew that 'full knowledge' does not mean 'every conceivable scrap of information' about a project. Such an approach would not assist local planning authorities in identifying the likely significant environmental effects of major projects, and would merely serve to obstruct the development of such projects to no good purpose.”

Those passages, submitted Mr Wolfe, are consistent with the claimant's case here. In Milne there had been a "worst case" assessment of impacts. The details of reserved matters were not likely to have significant effects if sufficiently controlled by conditions. Further survey work could properly be carried out within that context. It is very different in the present case, however, since the worst case is not already known and the further survey work might reveal likely significant effects, by which time it would be too late for the purposes of the EIA regime. Unless the council carried out a proper appraisal of likely effects it was unable to assess their likely significance as it was required to do in order to decide whether an EIA was required. The issues to which the further survey work related were capable of going to the principle of development. They were not simply directed at regulating details within a known and understood "environmental envelope".

In R v. Cornwall County Council, ex p. Hardy [2001] Env LR 473 one of the issues of concern was the potential effect of the proposed development on bats. The planning officer had advised the Planning Committee that there were no significant conservation issues. But the Planning Committee had accepted the advice of English Nature and Cornish Wildlife Trust that further surveys should be carried out to ensure that bats would not be adversely affected by the development. The consequences of this were described as follows by Harrison J (at p.491):

“61.

… They could only have concluded that those surveys should be carried out if they thought that bats or their resting places might, or were likely, to be found in the mine shafts. If their presence were found by the surveys and if it were found that they were likely to be adversely affected by the proposed development, it is, in my view, an inescapable conclusion, having regard to the system of strict protection for these European protected species, that such a finding would constitute a 'significant adverse effect' and a 'main effect' within the meaning of paragraphs 2 and 3 of Part II of Schedule 4 to the Regulations, with the result that the information required by those two paragraphs would have to be contained in the environmental statement and considered by the Planning Committee before deciding whether to grant planning permission.

62.

Having decided that those surveys should be carried out, the Planning Committee simply were not in a position to conclude that there were no significant nature conservation issues until they had the results of the surveys. The surveys may have revealed significant adverse effects on the bats or their resting places in which case measures to deal with those effects would have had to be included in the environmental statement. They could not be left to the reserved matters stage when the same requirements for publicity and consultation do not apply. Having decided that the surveys should be carried out, it was, in my view, incumbent on the respondent to await the results of the surveys before deciding whether to grant planning permission so as to ensure that they had the full environmental information before them before deciding whether or not planning permission should be granted.”

Although those observations related to the sufficiency of the environmental information in a case to which the EIA regime was accepted to apply, Mr Wolfe submitted that the same approach applies, for the same structural reasons, to the prior decision whether the EIA regime does apply: until surveys are carried out, the authority cannot say with confidence that there will no likely significant effects.

As to the facts of the present case, Mr Wolfe submitted that the impact of the proposed development upon golden plovers and bats was simply not known at the time of the council's decision. That was why further surveys were considered necessary. The regime of conditions and undertakings on the grant of planning permission was imposed in recognition of the fact that significant effects could not be ruled out and that mitigation measures would be required if such effects were identified. But by that time it would be too late, since the principle of planning permission would have been established. It was not open to the council to conclude in the circumstances that the EIA regime did not apply. There was information pointing to the potential for significant effects, yet the matter was left to be dealt with after the grant of planning permission. The erroneous approach was further illustrated by the passage in the officer's report which commented on English Nature's consultation response from golden plovers. The officer stated that English Nature's comment about "the lack of clarity" enabled him to advise that the development "will not have a significant environmental impact upon the Golden Plover habitat". That was erroneous and irrational reasoning. The advice that there would be no significant impact was unsustainable. It was an error of the same type as in Hardy. This was a case of "unbounded uncertainty" as in Hardy, not of "bounded uncertainty" as in Milne.

In the course of his reply Mr Wolfe made clear that his case was that the council should either have waited for the results of the further survey work before reaching a decision or should have decided on the information before it that an EIA was required. In the latter case the survey work could have been undertaken as part of the exercise of obtaining the environmental information in accordance with Schedule 3. In any event a precautionary approach should have been applied. If the worst case is known and it is clear that it will not involve significant environmental effects, then an EIA is not required. Otherwise, however, an EIA is required. There is a low gateway or threshold for the EIA regime to apply.

For the council, Mr Steel QC submitted that a contrast is to be drawn between the decision whether an EIA is required in the first place and the position once it has been decided that an EIA is required. In the latter case there has to be full consideration of all predictable effects of the development in accordance with Schedule 3 to the 1988 Regulations. In the former case what is called for is a much briefer look. The guidance in paragraph 19 of Circular 15/88 is to look at "the sort of factors" which are relevant. Paragraph 21 states that "a small proportion" of projects will fall within the three main categories where an environmental assessment will be needed. A much higher proportion would call for an EIA if, as the claimant contends, an authority could decide against an EIA only if it were sure that there was no likelihood of significant environmental effects. That would also place a substantial and unjustified burden of extra work on developers and authorities. As the circular makes clear, normal planning procedures should be sufficient to ensure that proper account is taken of environmental implications in most cases.

Mr Steel contrasted the amount of information required where the EIA regime does apply with that required for the purposes of the initial decision as to its applicability. At the first stage the authority is concerned with whether the proposed development would be "likely to have significant effects" on the environment by virtue of factors such as its "nature, size and location". At the second stage, where an EIA is required, it is necessary to assess the "main" or "likely significant" effects on the environment and to describe the mitigation measures envisaged to avoid, reduce or mitigate those effects. The amount of information needed to enable a rational decision to be made at the first stage should be very much less than is required at the second stage. To hold otherwise would defeat the object of the regulations: in effect, it would require an environmental assessment to be carried out in order to enable the authority to determine whether or not an environmental assessment was required.

Mr Steel also placed weight on the provisions of regulation 5 which enable a developer to ask an authority to express an opinion on whether an EIA is required. What must be submitted to the authority for that purpose is "a brief description" of the nature and purpose of the proposed development and "of its possible effects on the environment": this is in marked contrast to the detail required by Schedule 3 once it has been decided that an EIA is required. Moreover, even in a case where the authority has sought further information, the obligation is to respond to the request for a screening opinion within three weeks unless a longer period is agreed. Those provisions give the clearest indication that the exercise is not intended to require the authority to go into the degree of detail contemplated by the claimant's submissions.

The observations in Tew, Milne and Hardy, submitted Mr Steel, must all be read in context. In each case the court was concerned not with the initial question whether an EIA was required at all, but with the adequacy of information provided where an EIA was admittedly required.

The passage in paragraph 132 of the judgment in Milne, quoted above, shows that it can properly be decided that significant effects are not likely even if further surveys are to be undertaken. In circumstances of the kind there referred to, where creatures such as bats may move around, further surveys are a common sense way of ensuring that their location is identified and appropriate mitigation techniques are applied at the time of development. So too in the present case, although there have already been surveys and no bats have been identified, there is a potential that bats may be located there and it is appropriate to carry out further surveys in order to check on the position before actual development is carried out. This is in accordance with nature conservation and will ensure that the development does not have significant effects in relation to bats. Mr Steel also placed particular weight on the observation at paragraph 134 of the judgment that "there was 'full knowledge', in the sense of there being available as much information as could reasonably be expected at this stage". That was in relation to the second stage. The observation applies all the more strongly at the first stage, when deciding whether an EIA is required at all.

Mr Steel pointed out that Harrison J in Hardy did not appear to have had Milne cited to him although it had already been decided. There was a difference of approach between the two cases and Milne was to be preferred.

The decision in this case, it was submitted, could not be faulted in Wednesbury terms. The council had before it all the relevant information, including the material included in the officer's two reports (which were subdivided for administrative reasons and clarity of decision-making). They had regard to the facts, to the relevant regulations and the circular, and to the representations received. The summary of representations in the first report, produced specifically for the EIA decision, showed what the various groups were putting forward, thereby giving the worst potential case: how the various matters were overcome was dealt with in the second report.

English Nature's view was that there was no likelihood of significant effects; it was not saying that further surveys were needed. There had been three ecological surveys prior to English Nature's letter, in November 1998, July 2000 and February 2001. Nottinghamshire Wildlife Trust's comment that a comprehensive bat survey should be undertaken was contained in a letter dated 13 November 1998, before the detailed July 2000 ecological survey which identified potential bat roost sites but found no absolute evidence of the presence of bats. The volunteered undertaking by the developer to carry out further studies in relation to golden plovers was far from necessary for a decision on whether an EIA was required but was a welcome additional measure in the wider context of planning policy, in that it would give a better understanding of golden plovers and would enable any negative potential effect to be minimised.

It is common ground in this case that the central question that the Planning Committee had to decide in relation to the EIA regime was whether the proposed development was likely to have significant effects on the environment. That decision called for an exercise of judgment on the part of the members of the committee.

It seems to me, however, that a logically prior question for the committee was whether it had sufficient information to enable it to form a sensible judgment as to the likelihood of significant environmental effects. Although that point was not addressed in terms in the planning officer's report, it is clear that the planning officer considered there to be sufficient information and that the committee took the same view. In particular, although it was known that further survey work was to be carried out, the committee plainly felt able to reach a judgment on the need for an EIA without awaiting the results of that further work.

In my judgment that was a course lawfully open to the committee; and in so far as Mr Wolfe's case involved the contrary submission, I reject it. To expand on that point:

That brings me to the actual decision that an EIA was not required, which was the central target of Mr Wolfe's submissions.

In my view it is important not to over-complicate the analysis of this issue, as Mr Wolfe seemed to me on occasion to do by, for example, his references to a "bounding principle" and to "bounded uncertainty" and "unbounded uncertainty". In any event I reject the contention that an authority is subject to a "bounding principle" whereby it must require an EIA unless confident or positively satisfied that the proposed development will not have significant effects on the environment, and that any uncertainty must be resolved in favour of requiring an EIA. I also reject the contention that there is a low gateway or threshold for the application of the EIA regime. Of course it is important, in view of the objectives of the Directive, that a lawful decision is made as to whether an EIA is required; but I do not think that any gloss is required on the provisions of the 1988 Regulations.

The straightforward position is that under the regulations an EIA is required if a non-exempt development of a Schedule 2 description "would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location". It is only significant effects that bring a development within the scope of the EIA regime; minor environmental effects do not do so, though all such effects may fall to be taken into account in the normal way as material considerations (cf. the observations of Sullivan J in Milne e.g. at para 113, in relation to the details to be included in an environmental statement where an EIA is required). It is for the authority to judge whether a development would be likely to have significant effects. The authority must make an informed judgment, on the basis of the information available to it and having regard to any gaps in that information and to any uncertainties that may exist, as to the likelihood of significant environmental effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends on the circumstances of the individual case.

In the present case the main focus of the argument before me was on the information concerning golden plovers and bats.

As to golden plovers, the committee had before it extensive material concerning the impact of the proposed development. It included a detailed third report of the developer's consultants, dated February 2001, which was prepared on this specific issue in response to the concerns that had been expressed. It found no reason to presume that the overwintering golden plover population would suffer significant negative harm as a result of the development. English Nature's comments, as quoted in the planning officer's first report to the committee, were given in the light of that further study. Those comments must be read as a whole. The one uncertainty expressed was that it was "far from clear" that the development would have "a measurable impact" upon golden plover numbers within the wider area available to the species in the county. English Nature went on to say that the amount of wintering habitat that would be lost would be "relatively small" in terms of the amount available within the county, and that it was likely that farming practices had a far greater influence on wintering golden plovers than the loss of land to development. The overall view was that there were no substantiated grounds of a statutory nature for objecting to the application. In the light of that material it was in my view perfectly reasonable for the committee to conclude that the development was unlikely to have significant effects as regards golden plovers.

It may be that the planning officer expressed himself badly and compressed matters unduly when he said that "the highlighted comment of English Nature about the lack of clarity of any measurable impact enables me to advise that the development will not have a significant environmental impact upon the Golden Glover habitat". In my view, however, he was right about the underlying point that, despite the one uncertainty referred to, English Nature was effectively accepting that the development was not likely to have a significant impact on golden plovers. It was no part of English Nature's representations that further investigations might reveal the likelihood of a significant impact.

That the development was likely to have some effect on golden plovers was not in dispute. It was the likelihood of a significant impact that was not accepted. Thus there was no inconsistency in the planning officer referring in his second report to the loss of the land as a roosting/feeding site for golden plovers, which was still a material consideration. So too, although the second report fairly pointed out in that context that "the full impact on the Golden Plovers by the development of the site cannot be accurately assessed, as it is considered as being only a small part of a much wider area used by them", this did not mean that significant effects could not be ruled out: I refer back to the overall tenor of English Nature's advice and to the other material before the committee.

Nor was the acceptance of the developer's unilateral undertaking to carry out further survey work inconsistent with the committee's approach to an EIA. As the planning officer's second report recorded, the purpose of the further survey work in relation to golden plovers was to gain a better understanding of their movements in the locality, which could then be used generally to assess the impact of this and other developments in the area. Although it was no doubt appropriate for the council to accept that unilateral undertaking and to impose conditions concerning further survey work with a view to gaining a better understanding and possibly minimising any adverse effect, such further work was plainly not considered necessary for the purposes of an informed decision on an EIA; and in the absence of the results of that work the committee could nonetheless reasonably proceed to a decision on an EIA and could reasonably decide that the development was unlikely to have significant effects in relation to golden plovers.

As to bats, there was again a considerable body of material before the committee. The first report from the developer's consultants, dated November 1998, reported no signs of any protected species, including bats, on the site. The second report, dated July 2000 and arising out of recommendations by consultees that further work be carried out, reported that all mature trees and buildings had been checked for potential roost sites for bats; potential sites had been identified but no absolute evidence of the presence of bats had been found. There was no evidence from any source that bats were present on the site. On the basis of the material before it was reasonable for the committee to conclude that the development was unlikely to have significant effects in relation to bats.

It is true that the unilateral undertaking and conditions covered additional survey work in relation to bats. Again, however, I see no inconsistency between that and the committee's approach to the EIA. Having regard to the information already available, it was reasonable to conclude that the development was unlikely to have significant effects in relation to bats; but it was still appropriate to adopt further measures to ensure that, if there were any bats on the site, account was taken of them in the timing of the work carried out and by way of other mitigation.

I have focused on golden plovers and bats, but I should also make clear that in my judgment there was nothing in relation to any of the other environmental issues raised in the course of representations, e.g. as to the loss of habitats for other wildlife, that made it unreasonable for the committee to proceed to a decision on an EIA or to conclude that there was no likelihood of significant environmental effects.

The three main authorities cited - Tew, Milne and Hardy - all concerned the adequacy of information provided pursuant to Schedule 3 in a case where an EIA was required, rather than the initial decision whether an EIA was required at all. That makes it necessary to view with care what is said in them, though it does not provide a sufficient basis of distinction, given that similar concepts are in play in both contexts: one is concerned at the first stage with the likelihood of significant environmental effects and at the second stage with, inter alia, a description of the likely significant effects.

The closest authority factually is Hardy, but in my view it is readily distinguishable. The key point in that case was that the planning committee had decided, in accordance with advice from the relevant bodies, that further surveys should be carried out to ensure that bats would not be adversely affected by the development. Since those surveys might reveal significant adverse effects on bats, it was not open to the committee to conclude at the same time that there were no significant nature conservation issues. Having decided that the further surveys should be carried out, the committee ought to have awaited the results of the surveys so as to ensure that they had the full environmental information before deciding whether to grant planning permission. In the present case, by contrast, surveys had already been carried out and had revealed no evidence of the presence of bats on the site. There was information upon which the committee could reasonably proceed to a decision on an EIA and could reasonably conclude that there were unlikely to be significant effects on bats. Although further survey work was to be carried out, the existing information was such as to make it reasonable to conclude that the further work would not reveal significant adverse effects on bats.

Tew does not really assist in the resolution of the present case. Its subject matter was an application for outline planning permission which was accompanied by, but not tied to, an illustrative masterplan. The court held that there had been a failure to comply with the requirement in paragraph 2(a) of Schedule 3 to provide "a description of the development proposed …": there was an insufficient description to enable the main or likely significant effects of the development to be identified and assessed or to enable mitigation measures to be described. Such matters cannot be left to be dealt with at the reserved matters stage, since by that stage the principle of the development will have been established, it will be too late for informed representations to be made by the public, and the decision will have been taken in partial knowledge rather than full knowledge of the likely significant effects. All of that serves to remind one of the importance of the EIA regime in relation to a development that is likely to have significant environmental effects, but none of it bears directly on the reasonableness of the initial decision whether a development is or is not likely to have such effects.

I have already made brief reference to certain passages in the follow-up case of Milne. More generally, the approach of Sullivan J seems to me to help the council rather than the claimant on the facts of the present case. He emphasised that even in the context of the second stage, i.e. the adequacy of information where an EIA is required, it is possible in principle for there to be sufficient information to enable the likely significant effects on the environment to be assessed even though certain details of reserved matters are not known or further surveys are to be undertaken. Similar reasoning applies to the first stage: it is possible in principle to have sufficient information to enable a decision to be made as to the likelihood of significant environmental effects, and to found a conclusion that there is no such likelihood, even if certain details are not known or for further surveys are to be undertaken.

On the facts of Milne, as Mr Wolfe pointed out, the evidence was that, although uncertainties existed, the environmental assessment had considered the potential environmental impacts on the basis of the "worst case", which was defined by reference to the minimum standards that might or would be required by the relevant authorities (see paras 120-121 of the judgment). In the present case, as it seems to me, the question whether significant environmental effects were likely did not need to be assessed on the basis of any assumption as to the "worst case". It could be assessed on the basis of the actual information before the committee, which supported the conclusion that such effects were unlikely. In particular, as I have already indicated, it was reasonably open to the committee to conclude in the light of that information that significant environmental effects were not likely to be disclosed by the further survey work that was to be carried out if planning permission was granted.

For those reasons I conclude that the council's decision not to require an EIA in this case was reasonable and lawful. The decision was taken in accordance with the 1988 Regulations and respected the objectives of the Directive. It follows that the decision to grant planning permission, which is subject to challenge only by reference to the decision not to require an EIA, was also lawful. The challenge to the two decisions is dismissed.