Anderson & Ors, R (on the application of) v City of York Council

MR JUSTICE ELIAS: This is an application for judicial review; permission was granted by Forbes J on 22nd February of this year.

Immediately before this hearing began, the claimants made an application for an adjournment for some 2 months or so to give them an opportunity to persuade the Legal Services Commission to fund their claim.

There has been an ongoing dispute as to whether or not a contribution should be made by members of the group called "Save Our Barbican." I think it can be fairly said, in effect, that the two claimants are representatives for that group. I refused that application and I gave a separate judgment as to why.

In the circumstances, counsel and instructing solicitors of the claimants no longer participated in the proceedings. Mr Collins, one of the claimants, chose to pursue the application as litigant in person. He did not however make any observations during the hearing for obvious reasons as he is not a skilled lawyer; I make no criticism of him when I make that observation.

He asked me to treat the claimant's case essentially as that set out in the grounds under which judicial review was sought. I received no skeleton argument from the claimants and I am therefore in the somewhat unfortunate position of having to determine this matter after hearing submissions only from the defendant and the interested party and having to understand the case of the claimants solely from the grounds submitted.

The background can briefly be summarised as follows. On 21st September 2004 the defendant, the local planning authority, gave two planning permissions in favour of the Council itself, and the interested party, for a scheme of redevelopment of the Barbican Leisure Centre in York.

The planning permission was granted in respect of two applications.

The first gave detailed permission for the redevelopment of the Centre and the Kent Street car park, close to the historic city walls. This involved provision of a mixed use facility including 240 apartments and a hotel. There were alterations to the centre itself and to the existing multi-storey car park on a site opposite the main centre.

The second application related to an outline permission for the construction of a new community swimming pool on the Kent Street coach park site, which adjoins the multi-storey car park opposite the centre. There would be a proposed pool which would eventually replace the present Barbican pool and the present pool has been closed to the public in anticipation of this redevelopment.

The planning permissions together relate to a sizeable area of land currently occupied by the main Barbican Centre and the coach park. Together the sites occupy two large city blocks separated by Kent Street in a total perimeter of 1~kilometre. The Council is currently owner and operator of the sites and the interested party, Barbican Venture York Limited, BVYL, is in joint venture with the council.

The application for planning permission has excited much local controversy, as indeed did the decision to close the Barbican pool.

Both applications were the subject of screening opinions. They were for the purpose of determining whether or not the proposals constituted developments which required an Environmental Impact Assessment, the creation of a statement and consultation.

It was recognised that each of the proposals, by reason of their site area, fell within schedule 2 of the Town & Country Planning and Environment Act of England and Wales Regulations 1999 but the Planning Officer concluded that the combined proposals were not likely to have significant effects on the environment.

The claimants challenge that conclusion. They submit that the negative screening opinions and the consequential planning permissions are invalid.

Very broadly they rely upon two main grounds, although they are then subdivided into a number of more specific complaints. First it is alleged that the officer who prepared the opinions, Mr Carr erred in law in assuming the subsequent steps in the planning application process, including the imposition of conditions, would enable the elimination or sufficient mitigation of the adverse environmental effects such as to justify a negative stream of opinion.

It is also said that the Council lacked sufficient information at the screening stage in order properly to take the view that no screening opinion was required; indeed that is plain from the language used by the officer.

Second it is said that in evaluating the significance of the environmental impact the officer, in certain ways, failed properly to apply schedule 3 of the 1999 Regulations and Guidance in relation to this matter in Circular 2/99, as regards the scale of the proposals and the sensitivity of the location.

In substance, the complaint here was that the officer had acted in a mechanical way in applying the Regulations and had not properly taken into consideration the particular characteristics and features of the site before him.

The application was made on 21st December last year, that was the last day of the 3-month period. The grounds of that stage were not completed because of the public funding difficulties, to which I have referred.

Subsequently, fuller grounds were provided and it was on that basis that permission was granted. The relevance of that is that the defendants and the interested party both submit that even if there were any substance in either of these two claims -- and their contention is that there is not the delay ought of itself to lead me not to exercise discretionary relief in the claimant's favour.

Mr Forsdick for the third party reinforces that by relying on what he contends is the very limited interest of the claimants in this matter.

The relevant law -- and I will not deal with this in great detail because it has not been a matter of dispute before me -- is that for certain kinds of development it is incumbent on the planning authority to carry out an assessment to determine whether or not an EIA is required. This is known, as I have said, as a "screening opinion".

It is not disputed in this case that the development is of a size to raise the issue as to whether or not an EIA is required. It is an urban development project falling within schedule 2 of the 1999 Regulations.

The EIA is required if the development would be likely to have significant effects on the environment. Plainly in order to make that determination, it is necessary for the authority have sufficient information, to enable the assessment to be made, following the likely information and judgment, as to whether any environmental effects involved can be said to be significant.

Two principles are well established in this context and were not disputed by the claimant.

The first is that whether or not a development is likely to have significant environmental effects is a matter of judgment at the first stage, at least, for the local planning authority.

That is plain from observations in the Court of Appeal in R (Jones) v Mansfield DC [2003] EWCA (civ) 1408 and indeed by the House of Lords in Berkeley v Secretary of State for the Environment [2001] 2 AC 603.

The second is that whether or not the local planning authority has sufficient information upon which to form a proper screening opionion is again a matter of judgment for it. (See some observations of Richards J in the Mansfield District Council case [2003] EWHC 7.)

It is also established that a screening opinion is final. Even if, subsequent to the decision, it appears that the development would after all be likely to have significant environmental effects, nevertheless, a screening opinion may not be reopened at that stage. In this case, a screening opinion was carried out by Mr Carr (see Core bundle at tab 11).

He made a witness statement setting out his reasons for his conclusion and making plain what materials were before him. As to the basic approach he adopted, he said this:

It is a matter of some relevance that this was a redevelopment. Plainly the environmental impact is likely to be greater where there is an initial development rather than where there is a redevelopment of an existing site, although, of course, it always depends upon the extent and character of any change. It is again fully recognised that any assessment must be specific to the particular site.

I turn to the grounds. Before considering them in any detail I make some observations on certain submissions advanced by Mr Boyle for the defendant and Mr Forsdick for the third party.

They submit that, in large part, these grounds are misconceived because they appear to presuppose that a screening opinion has to state exhaustively the reasoning of the officer involved.

It is submitted, in my view correctly, that the screening opinion should not be read like a statutory provision.

It should be interpreted, just as it would be by a well informed reader who is aware of the character of the site and the background of the proposals.

Similarly, in the screening opinion, I accept it is not necessary to refer to all relevant documents that may have been relied upon. They will be usually in the file of the planning application or otherwise publicly available to those who are interested in the application.

In this case, it is relevant to point out that there was extensive documentation before the defendant in respect of the development proposals. They included the full plans of the proposals and an environmental desktop study dealing with questions of geology and hydrology, a design statement, a noise impact report, an energy use statement, an archaeological evaluation, a transport statement and an air quality assessment.

In addition, Mr Carr states in his witness statement, in a passage to which I have already referred, that he has extensive personal experience of carrying out screening assessments of this kind in York, often in cases where similar issues have arisen.

I turn then to ground 1.

The principle heading in relation to this ground is as follows:

Then that basic ground is subdivided into five categories.

The contention here appears to be that the officer had insufficient material available properly to reach a concluded view as to whether an EIA was needed or not. Moreover, it is submitted that he himself appears to have recognised that fact and also it is said that in certain contexts at least he has been improperly relying upon conditions to mitigate any adverse environmental effects. The claimant submits that the officer was not entitled to do so; at least not without giving a detailed explanation to show why he thought those conditions would be satisfactory.

In the first sub-ground the claimant relies in particular upon the observation made in the screening opinion in relation to the question of the site's historical, cultural or archaeological significance.

The officer said this:

The point apparently being made here is that the officer is reaching a view that no EIA is required and yet is envisaging that there will be subsequent detailed consideration of the proposals.

It is suggested -- or perhaps most accurately inferred from the way in which the grounds are framed, that it is not possible for the office to reach a proper concluded view if further detailed considerations are required.

I reject that. The issue was dealt with specifically by Mr Carr in his statement. He indicated that he was intending to make it plain that, firstly, the question of whether or not an environmental impact statement was required, was not decisive of the question of whether planning consent would be granted. In other words, a screening opinion could not prejudge the question as to the acceptability of the proposals. Second he was making it plain, by using this particular language, that details of the application could still be considered so as to minimise such environmental effects of the development as there were.

In other words, he was clear that there would be no significant adverse environmental effects but it was desirable that there may be some further consideration of the detailed proposals in order to minimise further any such adverse effects as there may be.

That is a perfectly cogent position. Of course it is quite common practice for conditions to be imposed at the permission stage to deal with the whole range of matters including, in some cases, to ensure that such environmental impact as there is, is reduced to the minimum.

The second sub-ground suggests that it is incompatible with the concluded view that the scheme is not likely to have significant effects to impose conditions.

In particular, there is a reference here to the detailed condition relating to investigating the impact of the site on the water environment. It is said that this shows that there was a degree of risk of contamination and the extent of that could only provisionally be ascertained; full investigation may prove that to be much greater than the officer considered likely.

Again it seems to me that this is not a sustainable criticism. It is perfectly reasonable for the officer to conclude that there will be no significant adverse environmental impact yet, at the same time, for it to be thought desirable there should be some further investigation in order to ensure that such impact as there is, is reduced as far as possible.

It is moreover the case here that this condition was requested by the Environment Agency and it was imposed after the screening opinion had been formulated by the officer.

The matter is dealt with in the statement of Mr Carr. He has set out in some detail why he concluded that there would be no significant adverse environmental impact in relation to the water environment. He referred to the fact that he had taken into account the findings of the Phase 1 Environmental Desk Study and he concluded at paragraph 24:

Again, therefore, I see nothing incompatible with the imposition of this condition and the officer's conclusion as to whether or not the effect on the water environment would be likely to have significant environmental effects.

The third sub-ground alleges that it was not reasonable for the officer to have concluded that conditions could be used to mitigate such potential environmental effects as there would be.

These related specifically to the level of impact on air quality, noise, light and the conditions attached to the planning permission in those areas imposed in mitigating measures.

It is said in the grounds that:

That suggests that the complaint here is not so much that the conditions can be relied upon but that there was insufficient explanation as to why they were being relied upon.

Again, it seems to me that it is perfectly proper for an officer to conclude that a particular development will have no significant adverse environmental effects and rely upon the fact that there will be mitigating measures. It always will depend on the circumstances. In this case, the mitigating measures were tried and tested measures commonly adopted for difficulties of this kind.

I can quite see that the position might be otherwise if what was envisaged was some altogether unusual operation, or some novel or unusual mitigating features which have not been fully tested and tried, where there was real debate as to whether they could or could not adequately mitigate such adverse consequences of the developments as they were.

That is not this case.

I do not think it was incumbent on the officer to set out why he thought that these mitigating matters, or any other measures, were appropriate. I should think he felt it went without saying.

Then the fourth sub-ground submits that the officer failed to address certain matters, in particular, the impact of piling on the groundwater and on residential amenity, and the operation and management of the car park. The short answer to this, I think, is that it is wrong. In fact, Mr Carr sets out in some detail the consideration he gave to these matters at paragraphs 27 to 33 of his witness statement.

Indeed, as I have indicated, there was a Traffic Impact Assessment which had been supplied with the original application and it may be that when the case was initially advanced, the claimants were not fully aware of precisely what matters had been taken into consideration. However, in the light of the witness statement, it is now plain before this ground cannot succeed.

There is then a fifth ground that it is consequential on the other four and I need say no more about it.

The second main ground, as I have said, is that the officer applied the schedule 3 criteria in a mechanical way and failed properly to consider the characteristics of the site.

It is said that the officer effectively reasoned that the scheme was not likely to have significant environmental effects because it was not obviously within the three main categories of EIA development, which categories are set out in Circular 2/99 to which I have made reference. Further, the specific features of the site were not considered.

The defendant and the third party again submit that these grounds are simply misconceived and they submit that one only has to look at the screening opinions themselves. It is plain that the officer had regard to these specific features of the site and they referred to certain passages in the screening opinion where that is made plain.

Furthermore, as I have indicated, Mr Carr is highly experienced in this field and it would perhaps be surprising if he were not aware of the most fundamental principle of all in his field which is that each case must be considered on its own merits and that the particular context has to be carefully considered when determining whether an EIA is necessary or not.

It is perhaps helpful just to note how the officer approached the question of whether or not an EIA is required in the screening opinion. Firstly, he summarised the Regulations. He then referred to the circular and identified the three main types of case when the Secretary of State envisages that an EIA would generally be required. These are major developments of more than local importance: developments proposed for environmentally sensitive locations, vulnerable developments with complex and potentially hazardous effects.

He then considered each of those three categories and concluded that the site did not fall into any of these. It was not a sensitive area as is referred to in the Regulations. In the context of whether it was a major development of more than local importance, he made reference to the fact that the Circular made some comparisons with the types of developments that are subject to the Secretary of State's call-in powers. It was noted specifically in the screening opinion that there was no presumption that the two are coterminous.

He identified the fact that the site had been used before and that it had not involved commercial development. He referred to the planning uses and categories in reaching that conclusion. In the appendix, he set out the selection criteria for screening the schedule 2 development by identifying under various paragraphs: the characteristics of the development, the occasion of the development and the characteristics of the potential impact.

It seems to me that he adopted a perfectly sensible approach which is fully in line with the relevant Regulations in the Circular. He concluded that it was not a major development.

Certain specific complaints are made; firstly it is said that the criteria of schedule 3 paragraph 1A and D, were misapplied. These characteristics refer to the size of the development and its cumulative effect on other developments.

It was said, as I have indicated, that the criteria were applied in a mechanical way and that it was wrong and irrelevant to take account of the use classes of the proposed component parts of the project. It was also said that the cumulative effect of the proposals was not taken into account. I reject all these matters.

It seems to me that if one looks at the screening opinion fairly and reads it together with the witness statement from Mr Carr, there was a careful assessment of the particular features of this site.

It was not wrong for Mr Carr to have regard to the use classes that were proposed in certain parts of the project. What he was saying, it seems to me, is that this was not, in essence, commercial development. It was more in the nature of residential and leisure development and that is a relevant feature when looking at the characteristics of the development.

He also plainly had regard to the fact that it was a redevelopment and that was manifestly a proper and relevant matter for him to take into account.

Then it was said that the selection criteria at schedule 3-paragraph 2 were misapplied. The grounds recognise, however, that the officer was right to conclude that the site itself was not a sensitive site so as to bring it on that ground alone within a schedule 2 development.

I am not sure I entirely understand this ground but the point appears to be being made that having so concluded, the officer did not have proper regard to certain sensitive attributes of this site; in particular, its historic setting and the sensitive attributes of that setting.

If and as far as it has been said that the officer failed to have regard to these historical and archaeological features, that simply is not sustainable. They are specifically referred to in the screening opinion and they are dealt with at some length in the officer's report.

Indeed, in the light of the archaeological information received, it became apparent that the development could be rather fuller than originally thought appropriate because the adverse archaeological effects were not as significant as was initially thought.

There is also a criticism of the officer having regard to the concept of "more than local importance". It is said that that is relevant to the Secretary of State's call-in discretion but would be likely to lead to error if relied upon by the officer when determining whether or not an Environmental Impact Assessment is required.

I may have slightly misunderstood this argument trying to draw it out from the grounds alone, but the concept of more than local importance is, of course, a relevant one in the context of determining whether there should be an Environmental Impact Assessment and it is specifically referred to in the Circular as one of the three kinds of case where an EIA will generally be required. Of course, it is always going to be fact specific.

Accordingly, I reject the criticisms directed under this heading too.

In the circumstances, it is not necessary for me to go further and consider whether, in my discretion, I ought to refuse relief because of the delay in making this application. I reach the clear conclusion that, in this case, the officer had significant information before him when he reached his screening opinion.

He has set out perfectly adequately his reasons for the conclusions he has reached in that opinion. The witness statement makes plain, in more detail, the reasoning process and the information that was before him.

Mr Nardell, before he withdrew from the case, seemed to me to accept that the way in which ground 1 had originally been devised was no longer sustainable in view of the witness statement of Mr Carr.

He indicated that he would want to refocus his challenge and make it a reasons challenge. I am not quite sure how it would be refocused. It seems to me, for what it is worth, that it would have been a difficult challenge to sustain given that the purpose of the screening opinion clearly is not, in any event, to set out the detailed reasoning of the officer on all points that might be the subject of interest.

But it would be wrong for me to say any more about a ground which ultimately was not formulated and on which I heard no real argument.

For these various reasons, this application for judicial review fails.

MR BOYLE: May it please my Lord.

My Lord in light of that, the defendant asks that the claim be dismissed and also that the defendant's costs be ordered subject of course to the Legal Services Commission giving leave to enforce the costs Order. We do not actually know precisely what the situation is with the Legal Aid funding.

There is an indication that it adequately covers the claimants in terms of protecting them in costs, and, specifically, contributions from them, but until that is sorted out we would reserve our position.

MR JUSTICE ELIAS: Yes.

Do you want to say anything about that?

MR COLLINS: My Lord, I am legally aided with a small contribution and the other plaintiff is legally aided without any contribution. I am afraid I do not understand the niceties of the argument that counsel would advance.

MR JUSTICE ELIAS: In the normal way, they would be given their costs but there are limits as to how they could be enforced against you personally. Nobody knows what they are at the moment, or at least they do not appear to.

I am sorry you were not in a position to advance further arguments, either personally or through your legal representatives.

MR COLLINS: Well, my Lord, clearly those for whom I appear as a representative will wish to take advice upon appeal and I gather it is appropriate at this stage to ask for leave for appeal, at least just as a holding of the position.

I obviously cannot talk of the merits of that position with regard to the planning law because I am not an expert in planning law.

MR JUSTICE ELIAS: I am afraid I will have to say no to leave but you can ask the Court of Appeal for leave as far as that is concerned.

MR COLLINS: I am obliged.

MR JUSTICE ELIAS: Thank you both very much indeed.