Gillespie v Secretary of State & Anor

This is a challenge under s.288 of the Town and Country Planning Act 1990 to a decision of the Secretary of State granting planning permission for development on the site of a former gasworks at Harford Street, Stepney. The site is an area of about 3.5 ha on the eastern edge of Stepney adjacent to the Regent's Canal. The western half of the site contains four gas holders and various other buildings, covering about 20% of the land. The land itself is extensively contaminated as a result of its former use. The surrounding area is predominantly residential, with some commercial uses.

The application for planning permission, as amended before the public inquiry, was a full application for permission for redevelopment to provide 407 residential units, a community health centre and other accommodation, with associated access road, open space, landscaping and car parking.

The local planning authority, the London Borough of Tower Hamlets, failed to determine the application within the time laid down. An appeal by the developer, Bellway Urban Renewal Southern, was recovered by the Secretary of State for his own determination. Following a public inquiry the inspector recommended that the appeal be dismissed, but the Secretary of State disagreed with the inspector's recommendation and decided to allow the appeal and to grant planning permission.

The claimant lives near the proposed development. At the public inquiry he gave evidence as part of the Save Stepney Campaign ("SSC"), which was concerned primarily with the retention of the gas holders as historic structures and with the proposals for decontamination of the site. SSC's case with regard to retention of the gas holders was accepted by the inspector and led to his recommendation that the appeal be dismissed. The Secretary of State, however, considered that the arguments in favour of retention of the gas holders were outweighed by the need for the proposed development. No point on that issue is raised in the present proceedings. The challenge relates only to the issue of decontamination.

As to decontamination, SSC argued before the inspector that no proper contamination survey had been undertaken and that there should be an environmental impact assessment ("EIA") before any decision was taken as to the grant of planning permission. The inspector concluded that an EIA was not required. The Secretary of State reached the same conclusion. The central question is whether the Secretary of State acted lawfully in relation to that conclusion: in particular, (i) whether the conclusion was based on a misdirection and/or was unreasonable, and (ii) whether there was an unlawful failure to give reasons for the conclusion.

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 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:

It is common ground that the development in this case is of a description mentioned in Schedule 2, namely “an urban development project” (Schedule 2, paragraph 10(b)) 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 relevant 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 (on the application of Malster) v. Ipswich Borough Council [2001] EWHC Admin 711 at paras 57-70.

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 inter alia:

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:

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

Paragraph 15 of Appendix A states that redevelopment of previously developed land is unlikely to require environmental assessment unless the proposed use is one of the specific types of development listed in Schedules 1 or 2 (other than an industrial estate development project or an urban development project) or the project is very much greater in scale than the previous use of the land.

There is specific government guidance in relation to contaminated land in PPG23: Planning and Pollution Control, and in Department of the Environment Circular No.11/95 on The Use of Conditions in Planning Permissions. Annex 10 to PPG23 states:

Circular No.11/95 contains similar advice:

The application for planning permission dated 8 October 1998 included a set of remediation proposals for the contaminants identified on the site. The document was prepared for Bellway by Merebrook Projects Ltd, a specialist firm of environmental consultants. It recorded that the contaminants identified included viscous coal tar, sulphur and sulphur-bearing compounds, and cyanides. The potential targets or receptors for the contaminants were site operatives, residents, nearby residents and the general public, adjacent land and controlled waters. In all cases the stated intention was to preclude significant pathways for the identified contaminants to reach the targets. Remediation proposals included site control during the works (e.g. strict health and safety measures to prevent exposure of operatives to contaminants during the undertaking of remediation works; dust control; exclusion of the general public from the site during remediation works), soil treatment (in particular, to immobilise and lock-in the coal tar), vertical barriers (to prevent movement of contaminants off site whilst at the same time being in part permeable so as to prevent an accumulation of water within the site) and horizontal barriers (in particular by the placement of layers of clean soils on gardens and open spaces in the finished development).

A further document prepared by Merebrook Projects Ltd, also dated October 1998, included the following under the heading "Outline remediation strategy":

An officer's report to the council's development sub-committee, dated 1 April 1999, identified a number of outstanding matters that required satisfactory resolution before planning permission could be granted. One of those matters was decontamination, in relation to which the Principal Environmental Health Officer had advised that details in the remediation strategy so far submitted were not sufficient to justify the remediation proposed. The report stated (para 8.3):

At the public inquiry in November 1999, following the council's failure to determinate the application in time and Bellway's appeal to the Secretary of State, the main relevant evidence on behalf of Bellway was given by Mr Edwards of Merebrook. His proof of evidence contained a detailed discussion of the various forms of contamination of the site. A section on decontamination proposals stated that "[i]t is clearly accepted that a significant amount of work will be needed in order to address the issue of contamination" (para 8.2). It set out "the philosophy" to be adopted during the reclamation phase of the development, stating that it was not possible to give full and final details of the scheme which would be implemented, since it had not been possible to investigate the full site to a common frequency (owing to the presence of structures) and the final scheme would need the approval of the council and relevant statutory bodies (para 8.3). The overall objective was expressed in these terms (para 8.13.1):

That the proposals related to the framework rather than the full details of remediation measures was emphasised by various of the comments in the following paragraphs. For example, it was stated that on completion of the removal of structures "it will be possible to carry out inspections of the ground conditions in those areas which have not been fully investigated to date" (para 8.15.1); that "[a]t this stage, it is proposed to install a vertical in-ground barrier around the site …" using E-clays the specific design of which would be carried out by Envirotreat Ltd, the designer of the product (paras 8.16.1 and 8.16.2); that the intensity of construction activities meant that a very large proportion of the site would be excavated and inspected, which "provides a means by which any other significant sources of contamination may be identified" (para 8.20.1); and that measures would be adopted to ensure that the reclamation project did not bring with it unacceptable environmental nuisance or create additional pollutant linkages by the generation of dust or vapours, and for that purpose a "detailed method statement" would be provided prior to commencement (paras 8.23.1-8.23.3).

In the proof of evidence of Bellway's planning consultant, Mr Painting, it was stated:

The council's position on the decontamination proposals appears from the proof of evidence of its planning officer, Mr Simmons:

In its own pre-inquiry statement SSC made clear that it was not opposed to the development of the site but was "deeply concerned by the serious inadequacy of the appellant's proposals for remediation of the site". It set out a case for an improved remediation scheme. Its environmental consultant, Mr Hadley, expressed the view in his statement that the technical data supporting Merebrook's summary report was insufficient to form the basis for a full risk assessment. He made adverse comments on various aspects of the remediation proposed, commenting for example that it was impossible to assess the viability of the proposed vertical barriers since the precise techniques were not documented. In his summary, after criticising the lack of information provided, he expressed the hope that the council "will ensure adequate safeguards are required, and attach specific conditions to any grant of planning consent". He did not address the question of an environmental statement. At the inquiry itself, however, SSC made clear that its case went beyond the attaching of specific conditions to any grant of planning consent: since no proper contamination survey had been undertaken, an environmental impact assessment and/or a prospective health impact assessment should be commissioned prior to planning permission being granted.

The inspector's report provided a detailed summary of the cases for Bellway, the council and SSC, as well as for other interested parties. I would refer in particular, though without extensive quotation, to paras 8.6-8.25, which set out Bellway's case on contamination and the remediation proposals; to para 9.3, which recorded the council's view that a detailed programme for dealing with the contamination was needed, but that the council considered that the imposition of a planning condition to secure such a programme, as recommended by both the Environment Agency and the council's Environmental Health Officer, would ensure that the issue of contamination was properly addressed; and to para 10.7, which recorded SSC's view on the need for an environmental impact assessment. At para 13.2, in the context of submissions on conditions, the inspector again noted that SSC had sought the provision of environmental and health impact assessments, but expressed the view that impact assessments were not required for the proposal.

In his concluding section, the inspector stated his conclusions on the issue of decontamination as follows:

Later in his conclusions, before recommending that the appeal be dismissed owing to the presence of the nationally significant gas holders, the inspector stated:

In an interim decision letter dated 12 October 2000, the Secretary of State's position in relation to an environmental impact assessment was stated as follows:

In representations dated 23 October 2000 on the interim decision letter, SSC expressed continuing concerns about decontamination and stated:

Concerns about decontamination of the site were also expressed by the Greater London Authority, in a letter dated 6 November 2000. The Authority's letter pointed out that the decontamination process to be used was relatively new; that it was not clear to what extent dissolved contaminants could be fully removed by the treatment of contaminated groundwater on-site and disposal via the sewerage system; and that the site was in the middle of a densely populated area, including a school, and the impacts of having a temporary contaminated waste treatment and disposal facility in the centre did not appear to have been adequately considered. In view of those concerns a specific recommendation was made that the process should include impermeable in-ground barriers and it was said to be of critical importance that new decontamination processes were fully and comprehensively tested before use in areas for residential development.

A letter dated 16 March 2001 from SSC's solicitors raised two main legal concerns about the interim decision letter. The first concerned references to PPG23 and was to the effect that in the absence of a more detailed and thorough risk assessment it was not possible to conclude that in situ remediation would be consistent with PPG23. The letter went on:

Bellway's response to that letter was to disagree with the concerns expressed. In particular, Bellway did not consider that the development would give rise to substantial environmental impact; furthermore, the merit of the proposed remediation works had been fully considered and debated. A letter from the Environment Agency dated 27 April 2001 commented that the Agency had considered the site investigation, risk assessment and remedial method in detail and "[i]n the Agency's opinion the site investigation and proposed remedial strategy are adequate to address the risks posed by the contaminants beneath the site".

The Secretary of State's final decision letter, dated 30 May 2002, stated that the letter should be read in conjunction with the interim decision letter and the inspector's report. As to the points raised by SSC on decontamination in post-inquiry representations, the letter stated that the Secretary of State was "of the view that the conditions attached to the permission, which address the decontamination issue, will ensure that there will not be unacceptable risks to health or the environment" (para 9). I think it clear from the context that the matters addressed in this part of the final decision letter were those raised in SSC's representations dated 23 October 2000 and did not include the subsequent representations by SSC's solicitors about PPG23 and the need for an EIA.

Those subsequent representations were dealt with later in the final decision letter, in a section on matters raised in further post-inquiry correspondence. Para 18 considered the point made about PPG23 and concluded that, subject to an amendment of Condition VI, "[t]he Secretary of State is satisfied that the planning conditions attached to this permission will provide for an appropriate remediation strategy for this site". Para 19 set out the conclusions reached concerning an EIA:

Condition VI, in its final form, was in these terms:

Mr Wolfe advanced two main grounds of challenge: (1) that the Secretary of State's conclusion that an environmental impact assessment was not required was unreasonable and unlawful, and (2) that there was an unlawful failure to give reasons for the conclusion.

In relation to the first ground, Mr Wolfe submitted that the Secretary of State could not reasonably conclude on the information before him that the development was not likely to have significant effects on the environment. One of his main points was that the Secretary of State had run together two separate questions, namely (i) what were the likely effects of the development in the absence of remediation and (ii) whether those effects would be avoided, reduced or remedied by remediation measures (cf. the two stages envisaged in para 2(c) and (d) of Schedule 3 to the 1988 Regulations). The Secretary of State had not considered the unmitigated effects but had assessed the effects only on the basis of the mitigation measures to be adopted pursuant to the conditions imposed. In this case the unmitigated effects of the development were likely to be huge and in any event could not reasonably be said to be likely to be insignificant.

A further point made by Mr Wolfe was that the Secretary of State could not lawfully rely on conditions requiring further investigation and the formulation of more detailed remediation measures unless he could properly say, on the basis of the information already available, that even on the worst case there would be no significant effects on the environment. There is no vice in putting off matters of detail to be dealt with by condition where it is known that on the worst case a development will not cross the threshold for an EIA. But in a case of "unbounded uncertainty", i.e. where the degree of uncertainty is such that it cannot be said whether the development will cross the threshold for an EIA or not, the need for an EIA cannot be avoided by reliance on conditions requiring further assessment or the formulation of more detailed remediation measures. In a case of unbounded uncertainty there must be an EIA. Otherwise the possibility exists that the development will be found at a later stage to give rise to significant environmental impacts; and by that time it will be too late, since the Directive and the 1988 Regulations require the procedures for environmental assessment to be complied with prior to the grant of planning permission.

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:

He also cited a number of 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. Those passages included:

Mr Wolfe submitted that, although those cases arose at the second stage of deciding whether planning permission should be granted where an EIA had been required, similar reasoning applies at the prior stage of deciding, as here, whether the development is one for which an EIA is required in the first place. Uncertainty needs to be resolved in favour of requiring an EIA. For the reasons given by Sullivan J, consideration of effects and mitigation measures cannot properly be left over to a subsequent stage, because by then the principle of the development will have been established. As to the observation at para 114 of Milne, Mr Wolfe submitted that in that case, as appeared thereafter in the judgment, 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, and further survey work could properly be carried out within that context. The present case is factually very different.

The position here, submitted Mr Wolfe, is logically the same as that considered in R v. Cornwall County Council, ex p. Hardy [2001] Env LR 473. In that case 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):

Although those observations again 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. Given the uncertainty and the need for further investigation and the formulation of more detailed remediation measures, the Secretary of State could not properly conclude that the development was not likely to have significant effects on the environment.

As regards the submission that the Secretary of State erred in looking at the effects and remediation measures together, rather than looking separately at the unmitigated effects of the development, Mr Wolfe relied on two further domestic authorities: the decision of Elias J in British Telecommunications Plc and Others v. Gloucester City Council [2001] EWHC Admin 1001 and the decision of Sullivan J in R (on the application of Lebus) v. South Cambridgeshire District Council [2002] EWHC 2009 (Admin).

In British Telecommunications the relevant council officer had concluded that the development was not likely to have a significant effect upon the environment and that an environmental statement was not required. In relation to the effect on archaeology he had relied on the fact that a mitigation strategy would be put in place. Elias J held that this was an erroneous approach:

In Lebus Sullivan J quoted the relevant part of that judgment and observed that Elias J was dealing with the provisions of the 1988 Regulations but comparable provisions were to be found in the 1999 Regulations with which he was concerned in Lebus. He continued:

Mr Wolfe submitted that there was the same flaw in the decision in the present case.

Mr Wolfe relied more generally on passages in decisions of the European Court of Justice and in the government guidance which in his submission favoured a precautionary approach to the EIA regime and supported the view that a case of uncertainty should be resolved in favour of requiring an EIA. He cited an observation of the Advocate General in Kraaijveld BV v. Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 that the purpose of the directive is that "projects which may have significant effects on the environment must be subject to a prior environmental impact assessment" (I-5419, para 40, emphasis added); and passages in the judgment of the court in the same case emphasising the wide scope and broad purpose of the directive (paras 31 and 39). He also pointed to the way in which the relevant test was expressed by the court in World Wildlife Fund (WWF) v. Autonome Provinz Bozen [1999] ECR I-5613 at para 45 of the judgment:

Mr Wolfe suggested that a precautionary approach was likewise to be seen in the language of Circular 15/88, in particular in the reference in para 20 to cases where "expert and detailed analysis of those effects would be desirable", and in the reference to "potential" effects and not just to "likely" effects in the judgments in British Telecommunications and Lebus.

For all those reasons Mr Wolfe submitted that the Secretary of State's conclusion that an EIA was not required was flawed and that this should lead to the quashing of the decision to grant planning permission.

In relation to the second ground of challenge, the alleged failure to give reasons for the Secretary of State's conclusion that an EIA was not required, Mr Wolfe submitted that an individual's directly effective right to secure compliance with the requirements of the Directive (a right recognised in Bozen and enforceable in our courts by way of judicial review) constitutes a fundamental right to which the reasoning of the European Court of Justice in UNECTEF v. Heylens [1987] ECR 4097 applies (see also Sodemare SA v. Regione Lombardia [1997] ECR I-3395). Heylens concerned a decision refusing to recognise the equivalence of a diploma granted to a worker who was a national of another Member State. One of the questions was whether such a decision had to state the reasons on which it was based. The court held:

Mr Wolfe accepted that the decision of the Court of Appeal in R v. Secretary of State for the Environment, Transport and the Regions, ex parte Marson [1998] 3 PLR 90, refusing a renewed application for leave to apply for judicial review, was against him but submitted that the case was distinguishable and/or wrongly decided. In that case the Secretary of State had decided that a development "would not be likely to have significant effects on the environment by virtue of factors such as its nature, size and location" and that an environmental impact assessment was not required. A challenge to that decision on the ground of a failure to give reasons was held to be unarguable. Pill LJ, giving the leading judgment, stated at pages 96-97:

Mr Wolfe submitted that the decision of the House of Lords in Berkeley set out a substantially different approach to the EIA regime from that on which the decision of the Court of Appeal in Marson was premised and that the reasoning in Marson could no longer be sustained. Further, the claimant was not contending for a general duty to give reasons but for a specific duty in this particular context; and in the present case the Secretary of State did not even give reasons in summary form. The failure to give reasons, it was submitted, vitiated the conclusion that an EIA was not required and provided an independent ground for quashing the decision to grant planning permission.

Mr Mould submitted that there were two relevant questions for the Secretary of State: (i) was the development likely to have significant effects on the environment, and (ii) did he have sufficient information to enable him sensibly to consider question (i). He properly concluded that he did have sufficient information and that the development was not likely to have significant effects.

In Mr Mould's submission, all that British Telecommunications and Lebus established was that, in a case where there is an accepted likelihood of significant effects, it is impermissible to avoid the requirement for an EIA by reference to the possibility of remediation measures: consider, for example, the observation of Sullivan J in para 51 of Lebus that "it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed" (emphasis added).

It is clear from the final decision letter, however, that that reasoning does not apply to the present case. Para 19 of the final decision letter dealt with two separate matters. First, the Secretary of State expressed himself satisfied that he had sufficient information to come to a view on likely effects, and stated his conclusion that the development was unlikely to have significant effects. Secondly, he expressed himself satisfied that the remediation works could properly be dealt with by condition. Thus he was not saying that there were likely to be significant effects but that they would be rendered insignificant by remediation works as required by condition. What he was saying was, first, that there were not likely to be significant effects; and, secondly, that conditions would ensure the exercise of sufficient control over the remediation works where the precise details were not yet known.

In forming his view as to likely effects, the Secretary of State was entitled to look at the proposed development as a whole and to take into account the practicalities. The basis of the proposal was that remediation needed to be carried out before the rest of the work, such as the construction of houses on the site, could proceed. The site was first to be put in a state where it was suitable for use. There had been extensive investigation of the site, to the extent possible while structures remained on the site. There was a clear remediation strategy and a stated intention that on completion of the work the site would not constitute contaminated land. There were specific remediation proposals, albeit it was not possible to produce a fully detailed worked-up scheme in advance, in particular because a full survey could not be carried out unless and until the existing structures were removed. On the information before him the Secretary of State was entitled to form the judgment that a development carried out in accordance with the stated remediation strategy was unlikely to give rise to significant effects. He was entitled to take the view that the outstanding details of the remediation works and the elements of uncertainty were not such as to affect that judgment or to create a likelihood of significant effects. In other words this was a case where the Secretary of State was reasonably satisfied that the boundary would not be crossed.

There is, submitted Mr Mould, an analogy with a "reserved matters" case such as Milne where it was held that any uncertainty could be sufficiently limited by means of conditions (e.g. tying the development to an illustrative layout) so as to ensure that the actual development would not give rise to a significant impact. Although that case was concerned with the issues that arise where an EIA is admittedly required, a similar approach should apply at the first stage of determining whether an EIA is required at all. Further, the present situation is distinguishable from Hardy, where the authority left over for subsequent assessment an important matter, the bat survey, the outcome of which might call into question the very issue of principle as to whether planning permission should be granted at all.

Mr Mould pointed out that the council shared the Secretary of State's view. It expressed the view that a detailed programme for dealing with contamination was needed, but was plainly not in doubt that such a programme could be implemented or that it could be adequately controlled by a condition. SSC's case to the inspector was that insufficient information was available to enable a proper assessment of the risks to be made. That was how the matter was put by SSC's environmental consultant, Mr Hadley (who, it may be noted, was an EIA expert but did not suggest that an EIA was required). The inspector rejected that argument and was satisfied that effective remediation would be achieved (note his conclusion in para 14.16 that contaminated land "would be remediated"). That view was not founded to any significant degree upon the existence of a condition, though he also took the view that a condition was appropriate for working out the details of the remediation programme: his stated reason for condition VI was "in order to achieve land decontamination objectives" (para 13.4). The fact that the council, the inspector and the Secretary of State all reached the conclusion that significant effects were unlikely was also relevant to the question of perversity of that conclusion.

As to the post-inquiry representations, Mr Mould referred in particular to the letter dated 20 March 2001 from SSC's solicitors and the contentions inter alia that the possibility of failure of the remediation measures created the likelihood of significant effects and that the Secretary of State did not have sufficient information to enable him to conclude that there were no likely significant effects. It was clear that in reaching the conclusion expressed in para 19 of the final decision letter the Secretary of State had taken those contentions into account but rejected them.

Overall, submitted Mr Mould, the Secretary of State asked himself the right question, approached the matter correctly and did not allow himself to be seduced by the condition into disregarding otherwise significant likely effects. He considered the likelihood of effects without reference to the condition and considered that a development in accordance with the stated remediation strategy would not be likely to give rise to significant effects and that there was no residual likelihood of significant effects. That was a lawful and rational judgment.

Mr Mould submitted that the separate "reasons" challenge was based on a wrong factual premise and was in any event wrong. As a matter of fact the Secretary of State did give adequate reasons. It was sufficient for him to explain that in his judgment the development would be unlikely to have significant effects. Against the background of the inspector's report and the parties' submissions, there was no difficulty in understanding why he had reached that conclusion and the claimant had ample material upon which to assess whether the Secretary of State had fallen into error. In any event the 1988 Regulations and the Directive do not require the giving of reasons for such a decision. This is not a case of fundamental rights as considered in Heylens. The Court of Appeal in Marson was right to conclude, albeit on a permission application, that no duty to give reasons arises in respect of a decision not to require an EIA. Although one part of the court's reasoning has been vitiated by the decision of the House of Lords in Berkeley, the rest of the reasoning and the conclusion remain sound.

Mr Lindblom QC, for Bellway, adopted the submissions for the Secretary of State. He submitted that the Secretary of State asked himself two separate questions. The first question was whether the development was likely to have significant effects. He answered that question at the beginning of para 19 of the final decision letter, a conclusion not dependent on the condition concerning remediation work. The conclusion was supported by the inspector's conclusion that the contamination would be remediated, signifying an acceptance of the case advanced by Bellway. The essential point in the evidence was that such residual investigation as had to follow the grant of planning permission was not such as to prevent the identification of the essential principles of the remediation strategy. Since the main principles were identified, it was properly open to the Secretary of State to conclude that remediation would work.

The second question which the Secretary of State still had to ask, and did ask, was whether he should impose suitable conditions to regulate implementation of the remediation works. He answered that question in the second part of para 19. Condition VI would regulate the manner in which the development was brought forward, but was not relied on as remedying otherwise significant effects of the development.

That simple analysis, submitted Mr Lindblom, distinguished this case from Lebus. In this case the Secretary of State formed a view as to the likelihood of significant effects without falling into the Lebus trap. The decision in British Telecommunications added nothing material to Lebus.

As to the "reasons" challenge, Mr Lindblom submitted that the 1988 Regulations impose no express duty to give reasons for concluding that significant environmental effects are not likely. Nor does the Directive, by contrast with the imposition of an express duty to give reasons where a Member State proposes to exempt a project from the scheme of the Directive (Article 2(3)(c)) and a discretion in Member States to provide for reasons to be given for a decision as to the grant of development consent for a Schedule 2 development (Article 9). The decisions in Heylens and Sodemare concerned fundamental Treaty rights and were far removed from the circumstances of the present case. The Court of Appeal was correct to conclude in Marson that European law gave rise to no duty to give reasons for a decision not to require an EIA. In any event the Secretary of State's stated reasons were adequate.

I have not found the resolution of this ground altogether easy. In the end, however, I have come to the conclusion that the claimant's case is well-founded in part and should succeed on that basis.

It is clear that without effective remediation measures the proposed development would on any reasonable view be likely to give rise to significant environmental effects. There is very considerable contamination of the site, even leaving aside the uncertainties caused by the absence of detailed investigation of the ground under existing structures. Contaminators could reach potential targets or receptors, whether on or off the site, in a variety of ways. The premise of the remediation strategy is that the risks are real and that extensive measures are needed in order to address them.

Accordingly, although he did not spell it out in this way, the Secretary of State's view that significant environmental effects were unlikely must have been based in part on an assessment that the proposed remediation measures would be effective to prevent the significant environmental effects that were otherwise likely to arise. It seems to me that Mr Mould effectively conceded that point in submitting that on the information before him the Secretary of State was entitled to form the judgment that "a development carried out in accordance with the stated remediation strategy" was unlikely to give rise to significant effects. Whether or not the point was conceded, however, it represents the only sensible basis upon which the Secretary of State could have reached his conclusion.

Once it is seen that the Secretary of State's judgment was based in part on an assessment of the effectiveness of the proposed remediation measures, he faces the difficulty identified in British Telecommunications and Lebus. The material part of the decision in British Telecommunications was that the defendant erred in law in taking remediation or mitigation measures into account in deciding that no significant environmental effects were likely in a case where there were otherwise potentially highly significant effects. That approach was followed in Lebus. It was based essentially on the fact that, where an EIA is required, the regulatory scheme requires separate information to be provided on (i) likely significant environmental effects and (ii) measures to avoid, reduce or remedy the adverse effects, so as to enable the public to make representations on the suitability and effectiveness of the proposed remediation or mitigation measures. That suggests that, in deciding whether an EIA is required, the focus should be on likely significant environmental effects rather than on remediation or mitigation measures; and if a decision runs the two issues together and rests on the view that remediation measures will be effective to prevent otherwise significant effects, it deprives the public of the opportunity to make informed representations in accordance with the EIA procedures about the adequacy of such measures.

The approach adopted in British Telecommunications and Lebus is not without its difficulties. Sullivan J no doubt had these in mind when at paragraph 45 of Lebus he qualified the main point by the words "[w]hilst each case will no doubt turn upon its own particular facts, and whilst it may be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development". In many cases it could probably be said that a development would be likely to give rise to significant environment effects, e.g. by way of generating dust and noise during construction work, if appropriate controls were not placed on the way in which the work was carried out. Such controls, however, are standard and are standardly dealt with by conditions. It cannot be right that mitigation measures of that kind have to be ignored when determining whether a development is likely to have significant environmental effects.

It is helpful to consider what Sullivan J himself said in Milne. He held, albeit in relation to the later stage where an EIA had been required, that an authority could properly conclude that it had sufficient information to enable it to assess the likely significant effects on the environment notwithstanding that certain details of reserved matters were lacking. It could be satisfied that such details, provided they were sufficiently controlled by condition, were not likely to have any significant effect (para 114, quoted above). In that case the environmental statement had considered the potential environmental impacts on the basis of the "worst case", defined by reference to the minimum standards that would be required by the relevant authorities, including those relating to noise and dust pollution during construction (paras 120-121). It was held that this was a proper approach and that it would then feed through into the mitigation measures (para 122). A further observation was that in assessing likely significant effects it was permissible to rely on the operation of statutory controls with a reasonable degree of competence by the statutory authorities and that the same approach should be adopted to the local planning authority's power to approve reserved matters (para 128). Thus, as it seems to me, it was clearly contemplated that various requirements relating to mitigation measures or feeding through into mitigation measures could properly be taken into account in assessing the likely significant environmental effects of a development.

Although there is a tension between the generality of the reasoning in British Telecommunications and Lebus and apparent exceptions of the kind to which I have referred, the matter seems to have been treated in Lebus as one of fact and degree; and on the facts of that case it was held that the defendant had erred in approaching the matter on the basis that the significant environmental effects that would otherwise arise could be rendered insignificant if suitable conditions were imposed.

The essential rationale of the approach in British Telecommunications and Lebus accords with the objectives of the Directive and the 1988 Regulations which implement it. Despite its difficulties, I am far from satisfied that the approach is wrong. In the circumstances I take the view that I should follow it.

On that basis the Secretary of State's decision in the present case suffered from a similar flaw. I have already indicated that it must have been based in part on an assessment that the proposed remediation measures would be effective to prevent the significant environmental effects that were otherwise likely to arise. The Secretary of State was considering not just the operation of standard conditions, but special and elaborate remediation measures that would be needed in this case if significant effects were to be avoided. He erred in taking those remediation measures into account in deciding whether the development was likely to give rise to significant environmental effects. The correct approach would have been to hold that significant effects were likely and that an EIA was therefore required, leaving the suitability and effectiveness of the proposed remediation measures to be discussed and assessed in the context of the EIA procedures.

Mr Mould submitted that such a conclusion would mean that an EIA was required in the case of any development on contaminated land. That may or may not be so: my conclusion in this case is based on the specific evidence concerning the particular site. But if that is the consequence of my conclusion, it is not one that causes me any alarm. There are legitimate public concerns about the risks of development on contaminated land and, although that is not in itself a reason for requiring an EIA, the EIA procedure should ensure that the public is fully informed of, and given a full opportunity to comment on, the extent of those risks and the measures proposed to meet them.

If, contrary to the above, it was lawful for the Secretary of State to take account of the proposed remediation measures when deciding on the likelihood of significant environmental effects, there is a further question whether the conclusion he reached was reasonably open to him.

In approaching that question, I take as my starting point that the Secretary of State was entitled to decide the matter on the information before him and without requiring any further investigations. One of SSC's contentions in its post-inquiry representations was that there was insufficient information to enable a decision properly to be made. The Secretary of State rejected that contention. I did not understand Mr Wolfe to challenge that aspect of the matter: rather, his case was that the only decision the Secretary of State could properly make was that there was a likelihood of significant effects.

In any event, however, the Secretary of State was in my view entitled to proceed to a decision. That view is based upon the following considerations in particular:

Whether sufficient information is available to enable a judgment to be made as to the likelihood of significant environmental effects is a matter for the authority, subject to review by the court on Wednesbury principles. That follows as a matter of general principle from the nature of the decision-making process in issue. It accords with the authorities to the effect that the actual judgment as to whether a development is likely to have significant environmental effects is subject to review on Wednesbury grounds (see para 10 above). It was the approach taken by Elias J in British Telecommunications where he held that "[i]t is for the authority to determine whether [an EIA] is needed …. It will therefore also be for the authority to decide whether it has sufficient information to make that determination, and its decision can only be upset on Wednesbury grounds" (para 78). Such an approach also accords with the views expressed by Sullivan J in Milne at paras 95 and 108-110 as to the respective roles of the authority and the court in determining whether sufficient information has been provided to meet the EIA requirements at the second stage.

The Secretary of State had a large amount of information as to conditions on the site and as to the principles of the remediation strategy. He was reasonably entitled to regard that information as sufficient for the purpose.

The main area of uncertainty related to the nature and extent of contamination under the existing structures, but for obvious reasons it was not practicable to obtain that information unless and until development commenced and the structures were taken down. Accordingly the lack of that further information did not make it unreasonable to proceed to a decision. To hold otherwise would be to allow the very existence of the EIA regime to frustrate the development at the outset, which is plainly not the intention. An analogous point was made by Sullivan J in para 94 of Milne, in relation to the stage where an EIA is required: "[t]he directive seeks to ensure that as much knowledge as can reasonably be obtained, given the nature of the project, about its likely significant effect on the environment is available to the decision taker. It is not intended to prevent the development of some projects because, by their very nature, 'full knowledge' (in the sense of an abstract threshold level of detail) is not available at the outset." Moreover the Directive's objective of ensuring that a decision whether to grant development consent is taken "in full knowledge" of the project's likely significant impact on the environment applies only at that later, not at the earlier stage of deciding whether an EIA is required at all.

As to the actual decision that there were unlikely to be significant environmental effects, it is true that there were uncertainties concerning the contamination under existing structures on the site and concerning the details of the remediation scheme. There had, however, been extensive investigation of the site and a lot was known about it. The principles of the remediation strategy were set out and broad details were given, even though there was no finalised scheme and it was not possible to prepare one at that stage. The objective was to create a finished site that did not constitute contaminated land within the meaning of government guidance. In the light of all the information available it was, in my judgment, reasonable to conclude that the contamination on the site as a whole, including contamination on that part of the site which had not been extensively investigated (in relation to which I note that the council's view as expressed to the inspector was that it was "possibly less contaminated"), would be dealt with satisfactorily by the implementation of a scheme prepared in accordance with the remediation strategy, so that significant environmental effects were unlikely to be caused by the development.

I do not attach much weight to the fact that the council and the inspector shared the Secretary of State's view that there were unlikely to be significant environmental effects. It does seem to me, however, that the Secretary of State must have shared the inspector's conclusion at para 14.16 of his report that contaminated land "would be remediated" if the proposed development were implemented in accordance with the remediation strategy. To the extent that uncertainties existed and details were lacking, he did not consider that they were sufficient to cast doubt on the effectiveness of the proposed remediation measures or such as to create a likelihood of significant environmental effects if the remediation strategy was followed. As I have indicated, it was reasonably open to him to take that view.

It was necessary and appropriate to impose a condition to ensure that the further investigations were carried out and the detailed remediation scheme was formulated and implemented in accordance with the stated strategy. That, however, did not involve postponing to a later stage consideration of matters that might disclose or involve significant environmental effects. It simply served to ensure that the basis upon which the Secretary of State had concluded that significant environmental effects were unlikely was carried through in practice. That was the point behind the statement in the second sentence of paragraph 19 of the final decision letter that "the remediation work required can be dealt with by condition and that condition VI sets out the procedure to be followed by the developer and does not indicate the likelihood of significant effects on the environment".

In terms of Mr Wolfe's submissions, though I did not find the expressions particularly helpful, this is a case of "bounded uncertainty" rather than "unbounded uncertainty". There is no valid analogy with the position in Tew, where important details capable of giving rise to significant environmental effects were left over for consideration at the reserved matters stage, with the result that they would fall to be considered after the principle of the development had been established by the grant of outline planning permission. There is a closer analogy with what was said in Milne to the effect that it is open to an authority to leave certain details to the reserved matters stage if it is satisfied that such details are not likely to have significant effects provided that they are controlled by conditions. So too in this case the Secretary of State was reasonably satisfied that the details of the remediation scheme were not likely to have significant effects if controlled by condition. Hardy, where the defendant authority had proceeded to a decision that there were no likely significant effects while at the same time requiring further surveys which, as was held by the court, were liable to disclose the likelihood of significant environmental effects, was factually a very different case and in my view does not assist.

I do not consider that the ECJ authorities and passages in the government guidance cited by Mr Wolfe advance the claimant's case. The simple point is that a reasonable judgment has to be made as to the likelihood of significant environmental effects. There is no warrant for qualifying that test by reference to a precautionary approach even though that is an important principle of EU environmental law.

For the reasons given above the Secretary of State was in my view entitled to conclude that the development was unlikely to cause significant environmental effects, provided that it was lawful for him to take into account the proposed remediation measures when determining whether significant effects were likely.

That brings me back, however, to my finding that it was not lawful for him to take the remediation measures into account. On that point alone I find in the claimant's favour on the first ground. It is nevertheless a point of sufficient importance to lead to the quashing of the decision.

In the light of my conclusions on ground 1, it is not strictly necessary to deal with ground 2, the reasons challenge. I would not, however, have found in the claimant's favour on that ground. In my view it was sufficient for the Secretary of State to state his conclusion that the proposed development was unlikely to cause significant effects on the environment, thereby showing the judgment he had made on the application of the relevant test. He did not have to recite the full language of the regulations by adding "by virtue of factors such as its nature, size or location". Nor did he have to set out further reasons why he had made that judgment.

As to the various matters raised in argument, I attach weight to the absence of any express requirement in the 1988 Regulations or the Directive to give reasons for a decision of this kind. The fact that express provision is made for the giving of reasons in certain other contexts tell against the implication of a requirement to give reasons in this context.

The Haylens and Sodemare line of authority is distinguishable. This case is not concerned with a fundamental right of the kind there in issue. Moreover, and importantly, effective judicial review is possible in this case without any further statement of reasons. The material upon which the Secretary of State's judgment was based is fully known to the parties and the lawfulness and rationality of that judgment can be challenged. Indeed, the claimant's success on ground 1 is a prime illustration of the availability of effective judicial review.

Although the judgment of the Court of Appeal in Marson was on a permission application, it was a detailed judgment and is of strong persuasive authority. I accept that the decision of the House of Lords in Berkeley has undermined part of the reasoning, namely reliance on the fact that the applicant had the opportunity to make representations on the environmental considerations and the authority was supplied with information on those considerations. But that does not affect the balance of the reasoning, the broad thrust of which seems to me still to hold good.

The decision will be quashed for the reasons given under ground 1. I will consider submissions from counsel as to further and consequential matters.