Tree and Wildlife Action Committee Ltd, R (on the application of) v Durham Estates Ltd

MR JUSTICE COLLINS: On the outskirts of Sunderland in Co Durham in Houghton Le Spring there is an area of woodland known as Newbottle Wood which at present extends to some 46 acres. Planning permission was granted by the local planning authority for development of 12 acres or thereabouts (or about a quarter of that area) in order to create in all some 20 football pitches, with associated changing rooms and parking for some 184 cars.

The claimant, Tree and Wildlife Action Committee Ltd, is a body which was formed by local people who were concerned at the possible loss of part of this woodland. It has launched these proceedings which essentially are based upon the contention that an environmental impact assessment is needed. In fact the challenge is on the basis that the defendant, the Forestry Commissioners, who have under the relevant regulations the responsibility of deciding whether an impact assessment is needed and whether in the circumstances, if they decide that none is necessary, consent should be given to the development, have failed properly to consider what should have been considered in reaching their conclusion that no environmental impact assessment was required.

Permission was granted by Dobbs J to enable this claim to go ahead. An interim order was made by Bennett J on 30th June 2006, following commencement of the proceedings on 29th June, which prevented the felling of any trees in accordance with the planning permission. At that stage there had been some felling and there was a threat that the planning permission would be put into effect, and so it was necessary to obtain the order in question.

The recipients of the planning permission submitted an acknowledgement of service to resist the granting of permission for the judicial review claim, but have not taken any further part in these proceedings.

There is no issue of fact involved here. Indeed, it is I think unnecessary to refer to the facts beyond the short indication that I have already given in summary. The claim depends upon the true construction of the relevant European Directive which has been put into effect by regulations. The starting point therefore is Council Directive 85/337/EEC which is concerned with the assessment of the effects of certain public and private projects on the environment. It is that Directive that has led specifically to the requirement for environmental impact assessments of various developments of land.

The Directive by Article 2 requires Member States to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.

One then turns to Article 4, which divides into two the projects which have to have consideration of or actual provision of environmental assessments. Article 4 reads:

One then has to turn to Annex II (because this is not a development which falls within Annex I) and it is covered, as is common ground and is obvious, under paragraph 1, which, under the heading "Agriculture, silviculture and aquaculture", reads:

It is self-evident that this proposal is deforestation for the purposes of conversion to another type of land use, the other type of land use being of course the football pitches and their associated buildings and car park.

Most of the projects which fall either within Annex I or Annex II are covered by regulations which require the planning authority (or the Secretary of State if he is responsible for granting planning permission) to consider the need for an environmental impact assessment. I should say that in relation to Annex II projects, whether or not there is a need has to be considered by what is described as a screening process. A decision is made following that screening process as to whether indeed there is likely to be such an effect on the environment as requires an environmental impact assessment to be made and then taken into consideration by the authority responsible for granting planning permission. The general regulations are the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

Those regulations do not include within their ambit the particular matter which is covered by paragraph 1(d) of Annex II to the Directive. The way that that has been put into effect in England and Wales is by the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999, SI 1999/2218 ("the Forestry Regulations"). The system broadly is that the Forestry Commissioners (or in some instances the Minister of Agriculture, Fisheries and Food, who was the person designated in 1999; his title has changed to the Minister for Environment, Food and Rural Affairs, but it matters not) must consider by a screening exercise whether such an assessment is needed. If it is not, then consent will be given. Once consent is given, the planning authority is able to go ahead without considering further the need for any environmental impact assessment.

Accordingly, this case depends upon the construction of the relevant provisions of what I will call "the forestry regulations". Regulation 2 deals with interpretation. It defines "afforestation" as meaning:

Some argument and consideration before me has focused on what is the relevant difference between those two definitions. It is apparent from the wording of paragraph 1(d) of Annex II to the Directive that it can have two possible meanings. It can either mean initial afforestation as such and deforestation for the purposes of conversion to another type of land use (i.e. the requirement that there be conversion to another type of land use relates only to deforestation and not to afforestation), or it can mean that the restriction for the purposes of conversion applies both to initial afforestation and to deforestation.

It is I think for the purposes of this case unnecessary for me to reach any conclusion as to the proper construction, because one difficulty is that the draftsman of the regulations has in relation to afforestation included the words "which has the same meaning as in paragraph 1(d) of Annex II to the Directive", and so one is thrown back to see what the true meaning is in the Directive. It may be, and I sympathise with the draftsman, that he felt that it was not either necessary or desirable that he should decide what actually the Directive did mean and he would leave to those who had to apply the Regulations to decide that question.

As I say, I do not think it is necessary for me to reach any final conclusion. Suffice it to say that it seems to me that the more sensible construction is likely to be that initial afforestation as such is covered and that the limitation is applied only to deforestation. I say that because initial afforestation is something which produces a land use which is obvious, namely a forest, and therefore to suggest that it is afforestation for the purposes of conversion to another type of land use seems a little tautologous. Indeed, as Mr Wolfe pointed out in the course of argument, it may well be that in certain circumstances the change, for example from open moorland or open grassland to forest, may itself have an environmental impact the effect of which needs to be carefully taken into account in deciding whether the afforestation should take place. Certainly the difference in wording in the Regulation to which I have referred suggests that the draftsman may have thought along the same lines.

Before I come back to the key paragraph, which is paragraph 3 of the Regulations, because that deals with what is a relevant project, I should go to paragraph 6, which is headed "Opinions of the Commissioners". Paragraph 6(2) provides:

Before going to Schedule 3 I should go to Schedule 2 which sets out the thresholds for identification of projects likely to have significant effects on the environment. That comes from paragraph 3(3) which provides that a project shall be taken not to be likely to have significant effects on the environment if the area covered or to be covered by the project does not exceed any relevant threshold set out in Schedule 2. It will be recalled from my reference to the Directive that it is open to member states to set thresholds in deciding whether projects which fall within Annex II should be the subject of possible environmental assessments.

Schedule 2 covers four matters: afforestation, deforestation, forest road works and forest quarry works. I need not consider specifically forest road works and forest quarry works. They are particular changes of use, if I may put it that way, within a forest for the purposes which perhaps are fairly obvious from their description. They do not apply of course to what is in issue here.

However, the threshold in relation to deforestation is 1 hectare unless the woodland in question falls within what is described as a sensitive area, which broadly speaking is a National Park or an Area of Outstanding Natural Beauty or some such, when it would be half a hectare. This particular woodland does not fall within a sensitive area and so the threshold is 1 hectare. Since the development covers 5 hectares (which if anyone wants to translate it into acres means that they would have to multiply the five by 2.417) is clearly well above the relevant threshold.

In considering the characteristics, Schedule 3, paragraph 1, requires, inter alia, that the characteristics of projects must be considered having regard in particular to the cumulation with other projects.

I now go back to regulation 3, but before doing so I note two more definitions. First of all, the definition in Article 2 of "project", which means:

It is a very wide definition and "interventions in the natural surroundings or landscape" quite clearly will cover deforestation.

Then "relevant project" is to be construed in accordance with Regulation 3, which deals specifically with the interpretation of relevant project. I think I should read it in full:

As will be apparent from the way this is set out, if the development proposed once the deforestation has taken place is one which in any event would require, by virtue of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, consideration of whether an environmental impact assessment should be made, it is not covered by the Forestry Regulations. It does not need to be because the necessary exercise will be carried out through the normal planning process. It is only if the development in question will not by itself require consideration of an environmental impact assessment that it is brought within the scope of the Forestry Regulations, hence the provisions in paragraph 1(c) which deal with cases where no development will be involved in the conversion following the deforestation, or the development is not covered by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, or it is within the General Permitted Development Order and so no planning permission is required for it. The position here is that the proposed development for the football pitches is not covered by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations and therefore it falls within the Forestry Regulations.

The arguments raised by Mr Wolfe are twofold. First, he submits that it is necessary to consider not only the effect of the deforestation, but also the effect of the development when the Commissioners decide whether or not an environmental impact assessment is needed. Alternatively, perhaps I should say cumulatively, he relies on paragraph 1 of Schedule 3 and submits that the nature of the development should be taken into account because it falls within the definition (if that is the right word) as being cumulation with another project. It is in that context to be noted that "project" has, as I have already read, a very wide definition. Thus the deforestation itself is a project and the creation of football pitches is also a project. Since the two are linked, then in cumulation with other projects must mean that the two must be taken into account together.

Mr Litton submits that on their true construction the provisions which I have referred to mean that it is only the deforestation which has to be taken into account by the Commissioners when they decide upon the need for an environmental impact assessment. That is their function, and there is nothing in the language of the Regulations or the Directive which requires a different construction.

So far as the cumulation point is concerned, Mr Litton's contention broadly is that that applies only to the sort of situation where there is an attempt, as it were, to slice up a project so that, for example, a number of small deforestations (small in area that is) are put forward in an endeavour to avoid the need to consider the whole. For example, 5 of 2 hectares which actually is of course 10 hectares, but the suggestion is by the applicant that each should be considered in isolation. That is impossible because of paragraph 1 of the Schedule 3. It is that sort of situation at which the cumulation provision is aimed.

I should just as a matter of fact refer to the relevant decision letter from the Commission dated 21st April 2006, which confirmed that consent was not required, obviously because it was considered that no environmental impact assessment was necessary. However, I should refer to an earlier letter addressed to Mr Bennett, who is the Chair of the Tree and Wildlife Action Group, in which this is said:

Deforestation by itself, if it is done without any intention of changing the use of the land, is not covered by any requirement for an environmental impact assessment. It only has to be considered if there is a change of use proposed as a result of the deforestation. To put it another way, the deforestation is part of the proposed development and is necessary to enable that development to take place. It would in my view be somewhat strange if the requirement for an environmental impact assessment consideration in those circumstances were limited merely to the deforestation aspect. As I say, that does not come within the sort of project for which an environmental impact assessment might be required. To suggest that the purpose of that deforestation means that an environmental impact assessment is required for the deforestation alone seems to me to fail to take account of the reason why the deforestation falls within the scope of a possible environmental impact assessment.

Mr Litton points out, and I accept, there may be situations where, if only it were possible, deforestation itself might have such an adverse effect upon the environment as to make an impact assessment desirable. Therefore there is the possibility that deforestation in itself might justify an impact assessment if only the Commissioners were able to consider the matter. That may be the case but I suspect would rarely be the situation. But even if it were the case, it is the project as a whole that is relevant.

Therefore, as it seems to me, it is necessary that the whole package, as it were, be considered (that is to say, the deforestation and what is going to be produced as a result of that deforestation) to see whether cumulatively or together they require an environmental impact assessment. Here there is deforestation and replacement with something else, and it is not in the least impossible that the replacement could have an adverse effect on what is left of the forest if the whole is not being removed. An example here might be that if there is to be flood lighting of the football pitches, that could have an effect upon the wildlife which otherwise is to be found in the forest area. Generally speaking, one can think of other examples which are not necessarily material in this case. Suffice it to say that it must be obvious, I would have thought, that the development in question could, when looked at together with the deforestation which allows it to take place, have such an effect as requires some sort of environmental impact assessment.

There will be no way in which otherwise it can get that consideration unless these Regulations are construed in that way. That is an important consideration because, as the authorities on the Directive make clear, it is necessary to apply a purposive approach and to acknowledge that the purpose behind the Directive is to ensure that no development project takes place which might have an adverse effect on the environment unless that possibility is properly investigated and taken into consideration in deciding whether the development should go ahead. In those circumstances, as I say, since there is no other way in which the effect of the development together with the deforestation can be taken into account, it accords entirely with the approach to construction of Regulations which implement this Directive to approach it in that way. In my view, there is no violence at all done to the language of the Regulations in adopting that construction of the relevant provisions.

It follows from that that in any case which falls within the ambit of the Forestry Regulations, but in particular if it is deforestation for the purposes of conversion to another type of land use, then the whole project, including that proposed use, must be taken into account in deciding whether the relevant assessment is required.

Accordingly, I believe that Mr Wolfe's primary submission is correct and that the Commission has adopted a wrong approach in its consideration of its functions under the Forestry Regulations. I should say that Mr Litton has not sought to argue that if that is the position, nonetheless the decision can be upheld because the result would inevitably be the same. He does not suggest that and he accepts that if I were to find against him, as I have, the decision will have to be quashed.

So far as the other argument is concerned, based on the expression "the cumulation with other projects" (quite why it is necessary to use language like that, I do not know), as I have said it seems to me that, the definition of project being wide, clearly there was in what was proposed cumulation: the two projects went together in reaching the final result, namely the change from forest to football pitches. Therefore, as it seems to me, even if Mr Litton were correct in his submissions in relation to the primary approach, this provision made it clear that that further project, namely the development, should be taken into account. I do not accept that it is limited in the way that he submitted. Of course it will cover the sort of situation to which he referred and prevent attempts to avoid consideration of the true scope of any deforestation proposal, or an attempt to avoid crossing the threshold by, for example, a number of deforestations each of which is under 1 hectare. Certainly that is a situation which would be covered. But also, as it seems to me, it is apt to cover the situation where there is a project which falls over the threshold, but has added to it another project which is part and parcel effectively of the same proposal, as is the situation here. Mr Litton is concerned that this will create difficulties for the Commissioners.

The answer to that is it will be a question of fact in an individual case whether it can properly be said that there is a cumulation, whatever that means in the context. Clearly it would not be possible to say merely because there were developments proposed which were nothing to do directly with the one in question but happened to be nearby, that that would bring this into play. It is a question of fact: proximity, combined effect and so on, are all factors which would have to be taken into account. However this is an exercise which any planning authority has to carry out, because there are similar provisions under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Difficult though it may be for the Commissioners, and unused though they may be to this sort of exercise, they have been saddled with the responsibility by the Forestry Regulations and they will have to live with it.

I should add that it seems to me that they would be sensible in any case to seek from the local planning authority any information which might be relevant to their decision, in particular to ask the local planning authority to let them know whether there are any other projects which might be likely to impact upon the one which they are considering. Equally, it is of course incumbent upon an applicant to let the Commissioners know precisely what additional (if any) projects are proposed to be made which could have an impact upon the one in question. Obviously, for example, if an applicant is trying to avoid the need for an environmental impact assessment by slicing up what he proposes to do into various applications, he has an obligation to let the Commissioners know what other applications he is making. If he fails to do that, any consent obtained is liable to be quashed at the instance of anyone adversely affected by it, because the Commissioners will have been misled as to the circumstances which they have to take into account.

I have dealt with this in rather more detail than I might otherwise have done because Mr Litton informs me that this is the first case where the approach of the Commissioners has been considered under the Forestry Regulations. I suppose there have not been that many applications which are covered by these Regulations, or certainly none which have turned out to be as problematical as this one.

It follows that I think Mr Wolfe's arguments are correct in both his submissions. In those circumstances the claim will succeed and the decision of the Commissioners will be quashed. The result is that the matter must go back to them for reconsideration on a proper basis.

MR WOLFE: I am grateful. Can I just deal with a trivial factual error which is the date of commencement of the claim. It is only worth noting because I think my Lord said 26th June in fact it is the 29th, which is exactly a year ago.

MR JUSTICE COLLINS: Was it the 29th? I am sorry it has taken so long to get on. I do not think anyone actually said to the court, once the felling of trees had been stopped, that there was any particular need for hurry.

MR WOLFE: There was discussion in the middle, which we have not focused upon, (inaudible) consented directions.

MR JUSTICE COLLINS: One of the problems that we have in this court, as you probably know, is an increase in work and a shortage of judges. The result is that all too often cases do not come on as soon as they ought to.

MR WOLFE: My Lord, the only substantive thing I need to ask for is an order that the defendant pay the claimant's costs, to be assessed if not agreed.

MR JUSTICE COLLINS: I do not think you cannot resist that, can you?

MR LITTON: I cannot resist that, my Lord. Ordinarily in a case of this nature there should be a summary schedule. There has not been one served on us.

MR JUSTICE COLLINS: That can happen.

MR LITTON: But I cannot resist the principle.

MR JUSTICE COLLINS: I confess that personally I am somewhat reluctant to make summary assessments following a hearing, because, putting it frankly, I am not in touch with what are the relevant rates. But even if there is no dispute about the relevant rates, it is very difficult to assess what may or may not have a reasonable time for considering documents and so on.

MR LITTON: Yes.

MR JUSTICE COLLINS: I find it very difficult to make summary assessments in those circumstances. It sometimes can be done.

MR LITTON: My Lord, it is not going to be possible because there has not be a schedule, so it will have to go to a detailed assessment.

MR WOLFE: It would (inaudible), my Lord, because this is a final disposal of the case and a summary schedule today would not have dealt with the prior stages.

MR JUSTICE COLLINS: Do not worry. I think, as you say, the likelihood is that I would not have in any event made a summary assessment, unless there had been agreement of course. But equally you may be able to agree, I hope you will, the amount of costs.

MR LITTON: My Lord, I have an application. My Lord, as we have already indicated --

MR JUSTICE COLLINS: You want leave to appeal, do you?

MR LITTON: My Lord, yes. Can I make two applications. The first one is for permission to appeal. But if my Lord you were against us in relation to that, what I would ask is that there be an extension of time for making any application to the Court of Appeal to 21 days from the date on which we actually the receive the transcript. Simply my Lord because it is going to be necessary for the Forestry Commissioners to take on board the detailed (inaudible) to take it further.

MR JUSTICE COLLINS: I have very considerable sympathy with that. Subject to Mr Wolfe, you do not need to press that for the moment.

As far as leave to appeal is concerned, I think that is one which you will have to persuade the Court of Appeal needs leave. I confess that I found the decision a very easy one to reach. It seemed to me to be self-evident, to be quite honest. I may be wrong, the Court of Appeal may tell me I am wrong in due course, but I think you had better go to them.

MR LITTON: My Lord, I rather anticipated that, my Lord, which is why I perhaps made the second application at the same time, 21 days from the transcript.

MR JUSTICE COLLINS: Yes. (Pause)

Apparently the transcript can be produced on Monday. I will have to correct it obviously, but you will get it before the end of next week is what it boils down to.

MR LITTON: Can I ask then, my Lord, perhaps if we have 21 days from the end of next week.

MR JUSTICE COLLINS: What normally is the period you have to go to the Court of Appeal?

MR LITTON: It is 21 days from which the decision is given.

MR JUSTICE COLLINS: Effectively you want an extra week is what it will boil down to.

I do not think there is anything unreasonable in that, is there Mr Wolfe?

MR WOLFE: No, my Lord. I make just two observations, one is I do not think we need to ask for the injunction to remain in place, because the decision having been quashed the development could not go ahead in any event.

MR JUSTICE COLLINS: Yes.

MR WOLFE: But in relation to any application for permission, whether it is made before my Lord or (inaudible), we would be seeking at whatever stage it is for a protective costs position, particularly as this is being used as a vehicle for the Forestry Commissioners to (inaudible) law.

MR JUSTICE COLLINS: That I think is a matter for the Court of Appeal to decide if they grant permission. So far as the injunction is concerned, I think you are probably right it is not strictly perhaps needed. But you may think that there is no harm, to say the least, in continuing it for the moment because there is a difference between what is available as a remedy for doing something in breach of planning permission and doing something in breach of an order of the High Court.

MR WOLFE: My Lord, maybe one way of doing it would be to have an injunction that carried on until the end of the time period my Lord had given or which then extended if they lodged an appeal.

MR JUSTICE COLLINS: I think that that would be a sensible course for you to adopt and then again if the Court of Appeal decide to grant permission, the Court of Appeal can consider whether there is a need to extend the injunction or not.

That does not directly affect you, Mr Litton, does it?

MR LITTON: No, my Lord, I make no observations in relation to the injunction, because plainly it relates to the interested party. If they perhaps foolishly went ahead and took down trees when there is no consent now, then plainly they would be in breach of those Regulations and subject to the enforcement provisions that apply in those Regulations.

MR JUSTICE COLLINS: As I say, it is one thing to be subject to those enforcement proceedings, it is another to be in contempt of court.

MR LITTON: Yes, my Lord, and in a sense I think the enforcement proceedings fall upon the Forestry Commissioner and perhaps we would not want to undertake that unnecessarily.

MR JUSTICE COLLINS: I do not approve of unnecessary injunctions. On the other hand, since the position is slightly fluid, I think it is better to keep it in being.

I have to fill out a form for the Court of Appeal to say why I have refused leave to appeal. I confess that I have some objection to that, I think it is quite unnecessary. I shall put "see transcript", which makes it perfectly clear why it has been refused.

MR LITTON: My Lord, yes. In so far as the extension of time, I think --

MR JUSTICE COLLINS: 21 days from --

MR LITTON: If we could have 21 days from --

MR JUSTICE COLLINS: -- receipt of the corrected transcript.

MR LITTON: If we could have 21 days from 6th July, when I understand the transcript will go to your Lordship.

MR JUSTICE COLLINS: No, I will say from receipt of the corrected transcript --

MR LITTON: Even better, my Lord.

MR JUSTICE COLLINS: -- which will be before the end of next week?

MR WOLFE: Could I see how it interacts with the injunction, because that it gives the injunction an uncertain --

MR JUSTICE COLLINS: The injunction continues as from now.

MR WOLFE: What I was contemplating is if within that longer period, no appeal --

MR JUSTICE COLLINS: The injunction will continue unless and until the Court of Appeal -- if permission is going to be sought, the injunction will continue until any contrary order is made by the Court of Appeal.

MR WOLFE: If permission is not sought...?

MR JUSTICE COLLINS: If permission is not sought, then --

MR WOLFE: I am happy for the injunction to lapse at the end of the period in which permission should have been sought.

MR JUSTICE COLLINS: Very well.

MR WOLFE: If that time is calculated from receipt of the judgment, that leaves the injunction end point slightly uncertain.

MR JUSTICE COLLINS: No. You will receive a copy of the judgment, you will know the date upon which you received it and that will be the date. You will both get it on the same day.

MR WOLFE: We will communicate with the third parties.

MR LITTON: Plainly if we do not make an application for permission to the Court of Appeal within the 21 days, then the injunction will lapse 21 days after receipt of the judgment -- of the transcript.

MR JUSTICE COLLINS: Just notify the interested party that the injunction is continuing, and you will tell them when the injunction lapses or if it lapses, is the best way I think of doing it. Then you must tell the interested party if you decide not to appeal the injunction will then lapse, if you decide to appeal then it will be a matter for the Court of Appeal to decide whether the injunction needs to be continued. That is a matter for you to decide whether you need to apply to the Court of Appeal, that the injunction be continues. But I shall continue it until either the decision is made not to appeal or, if a decision is made to appeal, to continue the injunction until the Court of Appeal decides what should happen to it. All right? I think that is the simplest way, is it not?

MR LITTON: I am grateful, my Lord.

MR JUSTICE COLLINS: Can you draw up between you the detailed order and give it to the associate.

MR LITTON: Yes, my Lord.

MR JUSTICE COLLINS: Incidentally someone said that this case was likely to last a day.

MR LITTON: I think we probably said a day including judgment, yes.

MR JUSTICE COLLINS: Unnecessarily pessimistic.