Smout v The Welsh Ministers & Ors

This is an Application by Mrs Pauline Marie Smout (“the Claimant”) who is a member of the Hafod Environmental Group, to quash a decision by the Welsh Ministers (“the First Respondent”) under Section 288 of the Town and Country Planning Act 1990 whereby the First Respondent confirmed Modification Orders made by Wrexham County Borough Council (“the Second Respondent”) in respect of Planning Permissions granted in 1995 and 1998 for land filling at Hafod Quarry (“the Quarry”) Rhiwabon. I heard oral arguments in respect of the Application on the 24 and 25 of June 2010 at the Rhyl County Court from Mr Richard Harwood, who with Miss Caroline Allen, represented the Claimant, Mr Clive Lewis, Queen’s Counsel who represented the First Respondent and Mr Stephen Sauvain, Queen’s Counsel who represented the Second Respondent. Cory Environmental did not appear before me. After that hearing, I reserved judgment.

The material in this case is voluminous and stretches over three lever arch files, a bundle of authorities and other material and supplementary material which was supplied either during or after the hearing. What now appears is a summary of what I consider to be the relevant factual background.

The Quarry is a 30.9 hectare site at Hafod Claypit, Johnstown, near Wrexham. It is shown on the plans at File one, Pages 134-136, tab 11. The site has been used for over a century for clay extraction and this has resulted in a large excavated area. A planning permission was granted in respect of the Quarry by letter dated 10 July 1995 from the Welsh Office (“The 1995 Permission”): See File A, Page 106 tab 11. That letter followed upon a hearing conducted by Mr R Davies at a Public Local Inquiry following the Appeal of Messrs Dennis Ruabon Limited under Section 78 of the Town and Country Planning Act 1990. The Inspector recommended that the Appeal be allowed. At paragraphs 4-9 of the decision letter various matters are dealt with. Paragraph 5 at Page 107 states:

“You were advised that the Secretary of State agreed with the Inspector that the relocation of the Great Crested Newts (“GCN”) was a matter which could be dealt with by a condition. Although Clwyd County Council have contended that a Section 106 Agreement was still needed to ensure the relocation and monitoring of any newt colonies on the Appeal site, the Secretary of State is satisfied that the relocation of the newts can be dealt with by the imposition of a condition along the lines proposed in Appendix D to the Inspector’s report and that a Section 106 Agreement is not required; the evidence submitted to the enquiry indicates that other arrangements exist for the monitoring of the relocated colonies.”

At paragraph 8 the letter states:

“For the reasons given, the Secretary of State allows your client’s Appeal and hereby grants Planning Permission for the Infill with domestic, commercial and industrial refuse, associated with site control buildings and engineering operations (including office, weighbridge, laboratory, wheelwash and gas venting and collection system) and ancillary development and restoration to agriculture and amenity, of Hafod Claypit, Johnstown, Wrexham in accordance with Application 6/RWA/18883 dated the 6 December 1990 and plans R48/2, R48/19B and JB1 subject to the conditions set out in Annex C to this letter.”

At Page 127, Annex C paragraph 5 et seq, what are called Preliminaries are dealt with. Paragraph 6 provides:

“Prior to the commencement of the development hereby permitted a survey of the application site shall be carried out to determine the numbers of GCN present on the land and a scheme submitted to the Mineral Planning Authority, for approval by them. Such schemes shall provide details of a rescue programme for the relocation of the numbers of GCN which may be identified in the survey.”

At paragraph 7 it is stated:

“The land filling operations hereby permitted shall not be commenced until the GCN identified by the survey required by Condition 6 have been relocated in a suitable alternative habitat provided in accordance with a scheme to be agreed, in writing, with the Minerals Planning Authority.”

The projected life of the permission is estimated to be “some 53 years after the commencement of operations”: See File 1 Page 120 tab 11 at paragraph 12.58. The subsequent planning history of the Quarry is summarised at File 3 at Page 770 paragraphs 11-16. From 1992, GCN and other species were recorded in the Quarry whilst it was still used for clay extraction. The 1995 permission was followed by translocation of the newts and a further translocation took place in 2005. By 2009, after designation of part of the site as SSSI as a result of the newt population and other amphibians, and after an unsuccessful attempt on the part of the First and Second Respondents to resolve outstanding planning issues in 2004 by way of an invalid planning application (“the 2004 Applications”) which found its way to the High Court and a hearing before His Honour Judge Gilbart QC, applications were made under Section 97 of the Town and Country Planning Act 1990 and the Conservation (Natural Habitats etc) Regulations 1994 and other provisions to modify the planning permissions. These applications were the subject of an inquiry held on the 10, 11 and 12 March 2009 (“the 2009 Inquiry”), during which the Claimant was represented by Miss Allen. The Second Respondent was represented by Mr Sauvain, and the Inspector, Mr Emyr Jones, heard evidence and conducted a site visit. The First Respondent as a result of that Inquiry, and the material generated by that Inquiry and the planning history to date, modified the orders on the 14 January 2010, and the current applications relate to those modifications. The claim form was filed on the 25 February 2010 and seeks the quashing of the modifications orders. Both the First and Second Respondent resist quashing the orders upon the grounds set out in their skeleton arguments. Mr Sauvain on behalf of the Second Respondent, modified the original submissions filed at the hearing before me and the extent of the modification was confirmed, at my request, in a letter dated 21 July 2010 written by Messrs Geldards, Solicitors for the Second Respondent:

“We have been asked by His Honour Judge Farmer to confirm which of the Counsel’s arguments contained in his skeleton argument Mr Stephen Sauvain QC stated would not be pursued by the Council.

We confirm that the only argument not being pursued by the Council was the argument that:

•

Modification Orders are not development consents under the EIA and Directive.

For the avoidance of doubt Mr Sauvain QC adopted Mr Lewis’ arguments in all other respects and addressed the court only on those issues he felt required further comment.”

I was referred to:

The Welsh Office Circular 11/99 Environmental Impact Assessments.

I do not propose to add to the length of this judgment by setting out the statutory and other provisions or the authorities at this stage, rather to refer to them during my review of the issues and the decision which is the subject of challenge.

I have not followed the notation of the issues in any of the skeleton arguments: to do so would again add unnecessarily to the length of this judgment, and the identification of the issues which I have adopted enables me to deal with the issues raised before me in the Skeleton Arguments which, with the exception of that of the Second Respondent, were the best fleshed skeletons I have seen for a long time. I propose, before handing the judgment down formally, to circulate it in draft for the correction of errors and for consideration as to whether any party requires any further issues to be dealt with or conclusions amplified before the judgment is confirmed.

Was the Directive properly transposed into UK legislation?

Further guidance on this issue is provided by Pfeiffer and Others v Dutches Rotes Kreuz and Others [2005] IRLR 137, [2005] 1CR 1307. At paragraph 103 it is said:

“In that regard, it is clear from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as the subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the National Courts by individuals against the State where the latter has failed to implement the Directive in domestic law by the end of the period prescribed or where it has failed to implement the Directive correctly…”.

At paragraph 113 it was further said:

“Thus, when it applies to domestic law, and in particular legislative provisions specifically adopted for the purposes of implementing the requirements of a Directive, the National Court is bound to interpret National Law so far as possible, in the light of the wording and the purpose of the Directive concerned in order to achieve the results sought by the Directive and consequently to comply with the third paragraph of Article 249 EC…”.

The statement of Rosemary Frances Thomas, albeit ex post facto, bears on this issue. In a letter to the Second Respondent dated the 9 March 2009 the First Respondent stated at File C, Page 730, tab 41, after referring to the Modification Orders and the Regulations:

“The proposed development above falls to be considered under Schedule 2 of the Regulations. Consequently, and in accordance with the provisions of the Regulations, Wrexham County Borough Council, your Authority, examined the proposals and considers whether they would have a significant environmental affect. You concluded they would not and that EIA was not required.

We have considered the proposals in the light of the Regulations and current guidance, and have come to the conclusion that we agreed with your authority that the proposal is unlikely to have significant environmental effects, in terms of its size, nature and location. Accordingly in our opinion, EIA is not required.”

Mrs Thomas at File A, Page 56A tab 7A in her statement sets out the background as she sees it, and at 56B paragraphs 2 and 3 states:

“I make this statement on behalf of the First Defendant to clarify one issue which has emerged from the Details of Claim filed in this matter by the Claimant relating to the question of whether the Modification Orders should be subject to Environmental Impact Assessment (EIA). The fact that I do not deal with other matters does mean that I accept those matters. I understand that criticism is made of the adequacy of the reasons given by the Welsh Ministers for deciding that an EIA was not required prior to the Modification of the two Modification Orders modifying the two planning permissions granted in relation to the site. The reasons appear from the documentary material and the letter of the 9 March 2009 and my letter of the 14 January 2010. I summarise the position below for convenience.”

“3.

The background to the making of the Modification Orders is set out in the recitals to the Orders and in the explanatory statement to the Order modifying the Planning Permission granted in 1995. In brief summary, Planning Permission was granted in 1995 and a further Planning Permission was granted in 1998 for infilling at a particular site (“the Site”). On the 13 December 2004, the Johnstown Newt Site Special Area of Conservation was designated. The Wrexham County Borough Council carried out a review of the Planning Permissions and determined to modify the Planning Permissions. The Modifications to the Planning Permissions are described in the two Modification Orders. In essence, they involve the exclusion from the Site of the part of the then SAC that would otherwise have been within the Site and certain consequential modifications.”

“4.

The EIA Regulations do not specifically deal with Modification Orders. I am aware that there is an issue as to the extent to which all or part of the EIA Regulations apply to Modification Orders. The Welsh Ministers, however, considered that a Modification Order may amount to a development consent within the terms of Council Directive 85/337/EEC as amended. The Welsh Ministers therefore considered whether or not an EIA was required prior to confirming the Modification Orders.”

“6.

The EIA Regulations do identify the issues that need to be addressed when making an assessment as to the need for EIA and I considered it reasonable and appropriate, in these cases, to have regard to the matters referred to in the EIA Regulations. I also took into account the guidance provided in Welsh Office Circular 11/99 – “Environmental Impact Assessment (EIA)”, which guidance is taken into account by the Welsh Ministers in considering whether EIA of a proposed development is necessary. I considered the overall effect, including any cumulative effect, of the changes resulting from the modifications to the two planning permissions.”

It is further clear from Mrs Thomas’ statement, paragraph 6, Page 56C and paragraph 7 on the same Page, that the Screening Opinion dated 25 August 2006 which appears at Pages 56e to 56f, advice from the Countryside Commission for Wales and the Environment Agency in Wales was considered. Mrs Thomas states:

“I set out the gist of that advice in my letter of the 14 January 2010.”

It should be recalled that that letter followed a request to the Inspector at the 2009 Inquiry to revisit the issue of whether an EIA was necessary and for him to produce an Addendum Report: that Addendum Report appears at file C, Page 815 at tab 46. The Report amplifies the thought process of the Inspector, and his conclusions that:

“Insofar as whether there could be significant environmental effects, that would depend on what ‘project’ was being assessed. If the ‘project’ was the entire landfill either as currently permitted or as would be permitted if the Orders were confirmed, it is inconceivable that a landfill of this scale would not have significant environmental effects without mitigation. However this was not before me; the Orders do not initiate development and cannot be construed as being development consents (paragraph 138). Hence the EIA Regulations do not apply.

5.

Be that as it may, the environmental effect of the permissions as modified by these Orders would at worst be comparable with and probably less than that of implementation of the existing provisions outside the SAC (paragraph 139). The important point in my view, is that the Orders would place restrictions on how a project which already has development consent proceeds and would restrict the scope of those consents as to safeguard the SAC. Nonetheless I reiterate that these Orders cannot be construed as being development consents. The issue of whether the Orders themselves would have significant environmental effects, in my view, does not, therefore, arise.”

The evidence of Matthew Ellis at File C, Page 608, Tab 35 and the evidence of Paul Hatherley at File C, Page 636, tab 37 was also before the Inspector and available to the First Respondent. Thus, in my judgment, the First Respondent took a pragmatic view, as Mrs Thomas’ statement shows, and did approach the issue of whether an EIA was required having regard to the Directive, notwithstanding views that had been expressed as to whether an EIA or a requirement for an EIA applied to modifications. In my judgment, in those circumstances, it is impossible to say that the First Respondent made a decision ignoring the Directive and its requirements. The First Respondent had in mind the effect of the Modifications, which was to restrict the way in which the original permissions could be implemented, the area upon which the original permissions could be operated, namely a reduced area, and other evidence and advice, and in those circumstances I find it impossible to conclude that the decisions should be quashed under Section 288 on this ground.

The Claimant’s case under this head is amplified at Page 27, paragraphs 87-91 of the Skeleton Argument. The First Respondent’s response is at Skeleton Argument Page 23, paragraphs 53-59. The Second Respondent adopted the submissions of the First Respondent. I was referred to R (MELLOR) v Secretary of State for Communities and Local Government [2009] EWCA Civ. 1201. At paragraph 7, Waller L.J. said:

“The Court ultimately ruled on the three questions in the following terms of Paragraphs 64 and 65 of its judgment:

’64. Article 4 of the Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects, on the environment, as amended by Directive 203/35/EC of the European Parliament and of the Council of the 26 May 2003, must be interpreted as not requiring that a determination, that it is unnecessary to subject a project falling within A annex ii to that Directive to an Environmental Impact Assessment, should itself contain the reasons for the competent authority’s decision that the latter was unnecessary. However, if an interested party so requests, the authority is obliged to communicate to him the reasons for the determination or the relevant information and documents in response to the request made.

Thus, it appears that a determination not to require an Environmental Impact Assessment need not itself contain the reasons for the determination provided that, if an interested party so requests, the authority making the determination shall communicate to the interested party the reasons for the determination and the relevant information and documents in relation to that determination. In this case, the First Respondent communicated their decision in the letter of the 9 March 2009, the letter of the 14 January 2010, and referred in those letters to documents which had been made available to and considered by the Claimant in the context of the 2009 Inquiry and the previous planning history, and had been on deposit for the purposes of that 2009 Inquiry and earlier Inquiries including the 2004 Inquiry, which resulted in the High Court Proceedings before His Honour Judge Gilbart, QC. All that material has to be considered in conjunction with the letters and it, of course, includes the Screening Opinion of 2006 and responses from CCW and EAW.

In those circumstances in my judgment the requirements of MELLOR as to reasons have been fully complied with and the Claimant and any other interested party know the basis of the decisions which have been reached and whether to challenge them. It is artificial to select one particular document and criticise it as short and unreasoned: that document has to be seen in its context, namely a decision which followed a complex and public process of examination and scrutiny, and depended upon a considerable body of material. It is again impossible to ignore Mrs Thomas’ ex post facto statement.

This conflates several aspects of the Claim, namely (i)(b), (ii) and (iii) as set out in the Skeleton Argument of the Claimant Pages 2-3. The Claimant’s submissions in the Skeleton Arguments appear at Page 28-34. The response of the First Respondent is at Pages 26-29 of the Skeleton Argument. The Second Respondent sets out its case at paragraphs 20-22 and 39-36 of the Skeleton Argument filed. It is the Claimant’s case, relying upon R (BAKER v BATH AND NORTH EAST SOMERSET COUNCIL AND OTHERS) [2009] EWHC 595 (Admin), that upon a proper application of the law, the principle of the original planning permissions needed to be addressed. It is common ground that they were not so addressed in this case. That appears from all the material before me. Collins J at paragraph 44 of Barker states:

“It seems to me that it is clearly not only consistent with but applies the approach that it is necessary to look at the effect of any modification or modifications on the project, or on the development, and to see whether the whole as modified, has or is likely to have other significant effects which need to be taken into account and may require an environmental assessment, albeit that they do not fall themselves within the criteria which have been adopted by the Member State.”

At paragraph 4 Mr Justice Collins refers to “a Report to the Council of the 15 December 2005 from an Environmental Health Officer” indicating concerns about odour nuisances: that report concluded:

“I also have concerns at the potential for increased odour caused by the transportation of partly rotting material from Charlton Fields to this site at Lime Kiln Farm.”

At paragraph 6 Collins J noted:

“The effect of the permissions in relation to Charlton Fields is clearly to intensify the use.”

At paragraph 10, Collins J states:

“It is common ground that if the permission did fall within the scope of the Directive, consideration should have been given to whether there was a need for an environmental impact assessment and so at this stage a screening opinion would have been required. This did not happen because the Regulations did not require, on their face, that that should happen, and so the Planning Authority (the Defendant) did not regard it as necessary to go along that route.”

What Collins J decided in those circumstances was that an assessment was necessary, and that consideration should be given to the overall effect of the modifications, not just the modification alone: see on this the Guidance to Chief Planning Officers in England and Wales given on the 18 November 2009 by the Communities and Local Government Agency.

The present application does not involve, in the view of the Respondents, an intensification of use, since part of the former permissions is excluded from future use. It is also the case where an Environmental Impact Assessment had taken place, and the need for a further assessment had been assessed and rejected, not solely on the basis that it was not required but on the basis, after assessing the merits, that it was not required given the information available.

In my judgment the situation was therefore different from the one considered in BAKER. The judgment of the First Respondent was that a considered and informed decision on the necessity for an EIA could be made in the circumstances. It was submitted to me that the operation of Section 97 of the Town and Country Planning Act 1990 is prospective not retrospective: in my judgment that submission is well founded. In those circumstances I agree with the submissions of the First and Second Respondents as to the effect of BAKER and I further accept their analysis of the decision making process adopted by the First Respondent. I see no reason, in those circumstances, to quash the decisions on those grounds. The contents of Mrs Thomas’ statement, already quoted, reinforce this view.

The contentions of the Claimant are set out in the skeleton argument at Page 7, paragraphs 18-27, at Page 21 paragraphs 71-72. This issue was raised before the Inspector at the 2009 Inquiry and he heard the following evidence on the issue:

It should be noted also that the Claimant called evidence at the Inquiry, and outlined its position as to compliance with Conditions 6 and 7 at the Inquiry: see the Statement of Case of the Hafod Environmental Group File B, Page 539 tab 32 at Page 543, paragraph 10. Thus the issue of non compliance with the conditions was explicitly raised and was the subject of detailed evidence from both sides at the 2009 Inquiry.

Mr Matthew Ellis sets out his expertise and experience and defines the ambit of his evidence at paragraphs 1.1 to 2.3 of his statement at Pages 609 to 611. At Page 614, paragraph 3.4 to 3.5, he deals with the relocation of GCN at the site between 1999 and 2004. The CCW was involved throughout in monitoring compliance with legislation and regulation, as the Appendices to his statement show. Mr Ellis also supplied a rebuttal proof of evidence to the Inspector in relation to evidence submitted by the Claimant: See File C Page 697 tab 39. That rebuttal evidence was wide ranging and dealt in particular with the evidence of Dr Hodgson on behalf of the Claimant. At Page 715, paragraph 2.4 it is said:

At File B Page 589, tab 34 paragraph 7.7.3 Mr Robert Dewey confronts the submissions made on behalf of the Claimant at the Inquiry and states;

“The landfill permission as modified permits wider landfilling than is able to take place under the 1995 or 1998 Planning Permissions. The 1995 Planning Permission has expired and the 1998 Permission cannot be implemented as Condition 7 cannot be complied with. At best only phases A and B could be landfilled. Therefore the Modification Orders extend the area which is capable of being landfilled. No EIA has been undertaken to assess the impact of this.”

Response: The Council is satisfied that the permissions were lawfully implemented and that all the conditions precedent were complied with. I have addressed the phases point in paragraph 7.4.5 above.”

The Inspector at the 2009 Inquiry noted and recorded the evidence and submissions made on behalf of the Claimant at File C, Page 766 tab 45, in particular in relation to GCN at paragraphs 113 to 116. At Page 791, paragraph 133 he stated:

“Condition 6 and 7 of both landfill Planning Permissions were to be satisfied before landfilling operations commenced and they do not address any requirements once the landfilling has commenced. The documentary evidence submitted clearly confirms that both have been satisfied (42,69,88 and 89).

It seems to me impossible in the context of an application under Section 288 of the Town and Country Planning Act 1990, to disturb the Inspector’s clear and unequivocal finding of fact at the Inquiry. He had the benefit of submissions, access to all the relevant material, assistance from officers, witnesses and I see no reason to fault his approach or set aside his conclusion of fact. As the letter File A Page 174 tab 15 from the Second Respondent to Mr Neal Richmond, the Assistant Planning and Estates Manager of SITA Technical Group shows, as long ago as the 28 March 2001, it was accept that “the matters reserved for the approval of the LPA as conditions precedent to the commencement of the landfill development have all been dealt with.”

The process of considering whether to approve the Modifications proposed by the Second Respondent involved consideration of the application of the statutory and other provisions to which I was referred and the evidence and material, consisting of the planning history, expert assessments and recommendations which were exhaustively canvassed in the 2009 Inquiry. In the course of that process and before making a final decision, the First Respondent sought clarification from and further assistance from CCW, EAI and the Inspector at the 2009 Inquiry. As the material before me shows, and the statement of Mrs Thomas confirms, that process was exhaustive and in my judgment it does not involve errors of law: the issues to be dealt with were identified before, during, and after the 2009 Inquiry, and the First Respondent dealt with them in a way which was reasoned and proportionate. At the end of the day the views of the Claimant did not prevail, but they were considered fairly and I am not persuaded that the final decision falls to be quashed for the reasons proposed by the Claimant in this Application under Section 288 of the Town and Country Planning Act 1990. In reaching that conclusion, I had regard to all the voluminous material before me and the submissions written and oral of Counsel. I have had regard to the submissions on behalf of the Claimant in relation to the hearing before His Honour Judge Gilbart QC, and the further submission barely developed, in relation to an error in transposition in relation to the Environmental Permitting (England and Wales) Regulations 2007 at page 33 paragraph 105 of the Claimant’s Skeleton Argument but it does not seem to me that either of these issues or the other issues with which I have not specifically dealt need to be considered in detail for the purposes of my decision.