Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE STEPHEN STEWART QC
(Sitting as a Deputy High Court Judge)
Between:
LOUISE BOWEN-WEST
Claimant
v
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
First Defendant
NORTHAMPTONSHIRE COUNTY COUNCIL
Second Defendant
AUGEAN PLC
Third Defendant
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Mr D Forsdick and Ms Z Leventhal (and R Buxton (Solicitor Advocate) for judgment only) (instructed by Richard Buxton Solicitors) appeared on behalf of the Claimant
Mr R Warren (instructed by Treasury Solicitor) appeared on behalf of the First Defendant
The second defendant did not appear and was not represented
Mr R McCracken QC and Mrs A Graham Paul (instructed by Dickinson-Dees Solicitors) appeared on behalf of the Third Defendant
J U D G M E N T
THE DEPUTY JUDGE:
The Decision Challenged and the Grounds of Challenge :
On 24 May 2011, the first defendant issued a decision letter granting to the third defendant permission for disposal of low level radioactive waste ("LLW") in addition to the already permitted hazardous waste ("HW") at an existing HW landfill site known as the East Northants Resource Management Facility ("the site"). The grant was until the expiry of the current permission on 31 August 2013.
The claimant challenges the lawfulness of that decision on two grounds. She alleges:
(i) That the Secretary of State granted planning permission without consideration of the indirect, cumulative and likely significant environmental effects of permitting the development and, in deciding to do so, acted irrationally.
(ii) In (not) so doing failed to take into account that reducing the capacity available for the intake of hazardous waste rendered more likely the need for future expansion of the site beyond 2013.
The claimant's application, made under section 288 of the Town and Country Planning Act 1990, is to quash the first defendant's decision on those points of law.
The claimant is a local resident and a member of the King's Cliffe Wastewatchers, a local unincorporated group who participated at the inquiry as a Rule 6 party. The inquiry lasted for 14 days over a 5-week period in October/November 2010. The Inspector was Mr K G Smith and his report (the "IR") to the first defendant is dated 16 February 2011.
The claimant obtained a Protective Costs Order on 3 August in connection with this application.
Background
The site's consent for the disposal of HW was granted in 2006, permitting the disposal of 249,000 tonnes per annum of hazardous waste and inert materials. The site must be restored by 31 August 2013.
The third defendant sought permission, by application submitted on 21 July 2009, to fill parts of the site (namely phases 4B, 5A and 5B) with LLW. The second defendants refused permission despite the support of its officers. The first defendant allowed the third defendant's appeal following a recommendation from the Inspector.
The adequacy of the Environmental Statement ("ES") was raised by the second defendant and is at the heart of this claim. In paragraph 1.32 of the IR, this appears:
"Augean informed NCC in June 2010 that it intended to make an application in 2011 for an extension of the site onto adjoining land and to seek to extend the operating life of the site for an additional 13 years until 2026. Augean stated that it intended to apply to the Infrastructure Planning Commission (IPC) for a Development Consent Order in June 2011. Following this, at the Development Control Committee meeting of 27 July 2010, NCC approved 'additional reasons for refusal', as follows:
(a) The application is for piecemeal development of a project that should be the subject of a comprehensive application.
(b) The Environmental Statement submitted with the application assessed the application proposal in isolation, whereas it is in reality part only of a more substantial development: the application cannot be determined without assessment of the cumulative effects of the totality of the project.
(c) The Waste Planning Authority is not satisfied that, if planning permission were granted on this application, the proposed operations would be completed, and the site restored, by August 2013 in accordance with the planning permission..."
On 1 October 2010, prior to the commencement of the inquiry, the Planning Inspectorate issued a letter after considering written representations from the second and third defendants. I shall cite two short extracts from that letter:
"In the run-up to the inquiry it has emerged that the appellant also desires both to achieve an extension to the ENRMF site, and to achieve an extension to the life of the currently permitted site. Neither of these intentions forms part of the current appeal proposal. Northamptonshire County Council (NCC) and the appellant dispute the extent to which these intentions have previously been made evident to the Council and to the public...
In the Planning Inspectorate's view, the matters raised in relation to a future planning application for extension of the currently permitted site are not in themselves sufficient to support or to justify a requirement for further environmental information to be submitted under Regulation 19 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999."
Relevant to ground 1 of the claim are the following key passages:
In the IR:
" Precedent
7.69. Would a permission for this appeal create a precedent? To a significant degree, yes, if the new application is for or includes the landfilling of LLW. In general terms, the greater the similarity between proposals, the greater the potential precedent. I acknowledge that any new application would involve a change of circumstances from those pertaining now, in part from the passage of time or perhaps from proposals to construct new cells and develop the restoration proposals and landforms...
7.70. However, any new application would be on the same site now being considered or on an adjacent site and many other circumstances would remain the same or be little changed. And, as the new application is expected to be submitted in 2011, possibly shortly after the decision on this appeal, there will have been limited time for change with regard to matters such as policy or the development of competing facilities, which would affect the consideration of the proximity principle, BAT, need and so on. In the same way that appeal decisions elsewhere have been quoted here on the 'perception of harm' issue, I have no doubt that any conclusions that the SOS reaches on this appeal that are favourable to the appellant on actual harm, perception of harm, need, transport, highway safety, localism, economic effects and the like would be quoted by the appellant where relevant in support of a new application for the landfilling of LLW...
7.71. If this appeal is allowed, the chances of permission for a future proposal for the landfilling of LLW at or adjacent to the cells to be filled in this case would be enhanced.
Environmental Statement
7.72. The added 'reasons for refusal' (a) and (b) state, in essence, that this appeal is part of a project that should be the subject of a comprehensive application and that the Environmental Statement should have assessed the totality of the cumulative effects...
7.73. NCC was able to deal with the application that led to this appeal on the basis of the information that it had including the Environment Statement (ES). Augean advises that it only decided in May 2010, after the preparation of the ES, that it will seek to extend the use for hazardous waste until 2026 and, even now (at the time of the inquiry), states that it has not yet decided whether that application will include LLW. The current appeal is not part of a piecemeal proposal or an integral element of a comprehensive scheme; consequently, there would be no cumulative impacts of concern deriving from any future application that might include LLW. This appeal is for a stand-alone proposal which can be and is being considered on its own merits and, no doubt by reason of the precedent arguments outlined above, the appeal decision to be made could be a factor in any decision by Augean about a future application. It is not unusual for applications to be made to alter or extend the life of a temporary permission; at present, there are no details of any future proposals. I see no reason why the current appeal should not be dealt with on its own merits...
7.74. As to the ES, I find nothing to support NCC's claim that a permission in this case would frustrate the aims of the Environmental Impact Regulations and the Directive. As the current proposal is not part of a comprehensive scheme from which there would be a cumulative impact, I find nothing to support the claim that an assessment of cumulative impact would be deferred to be examined by an ES at the stage of the second application...
7.75 In relation to NCC's argument, in September 2010, before the opening of the inquiry, that additional environmental information should be required, the decision of Pins was that there was no justification for this. At the opening of the inquiry, NCC referred to the Mageean Case, which states that, with regard to an EIA screening direction, "only the Secretary of State can cancel or vary that screening decision". That case is (at the date of the inquiry) subject to challenge but, in any event, the submission about the adequacy of the ES are now before the SoS."
The first defendant's decision letter, paragraph 4:
" Procedural Matters
In reaching this position the Secretary of State has taken into account the Environmental Statement (ES) which was submitted under the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 and the Inspector's comments at IR1.17 and IR7.72-7.75. Like the Inspector, the Secretary of State sees no reason why the current appeal should not be dealt with on its own merits (IR7.73) and that there is nothing to support the Council's claim that permission in this case would frustrate the aims of the Environmental Impact Regulations and the Environmental Impact Assessment Directive, or the claim that an assessment of cumulative impact would be deferred to be examined by an ES at the stage of the second application (IR7.74). In conclusion, the Secretary of State is content that the Environmental Statement complies with the above regulations and that sufficient information has been provided for him to asses the environmental impact of the appeal...
Localism and precedence
30. The Secretary of State agrees with the Inspector's reasoning and conclusions regarding localism at IR7.67, and regarding whether permission for this appeal would create a precedent at IR7.69-7.70. He accepts that, in allowing this appeal, the chances of permission for a future proposal for a future landfilling of LLW at or adjacent to the cells to be filled in this case would be enhanced (IR7.71). However each application needs to be considered on its merits and having regard to the material circumstances at the time."
Relevant to ground 2 of the claim are the following key passages:
In the IR:
"7.61. There is also a counter argument that there is a need to safeguard the hazardous waste void-space, which the appeal proposal would inevitably reduce. However, the baseline for the intake of hazardous waste to the site is around 100,000-120,000 tpa and Augean state that there is capacity until 2015/2016, say 5 to 6 years from the date of the inquiry, giving a remaining void-space for at least 0.5 mt. The best estimate for the intake of LLW to the site is around 20,000 tpa. Thus, in the timescale of the appeal proposal until 2013, the intake of LLW would have no effect on the void-space needed for hazardous waste: the site would not be full by 2013 even with the addition of the LLW waste stream. The intake of LLW until 2013 would only occupy void-space that would otherwise be used for hazardous waste if NCC were to grant an extension to the current permission until beyond 2013, in which case around 40,000 tonnes capacity taken up by LLW would not then be available for hazardous waste. However, no such application has even been submitted, let alone determined. Hence, I attach little weight to this argument..."
In the decision letter:
" Hazardous Landfill Void Space
26. The Secretary of State agrees with the Inspector's reasoning and conclusions in respect of hazardous landfill void space at IR7.60-7.61. He agrees that, in the timescale of the appeal proposal until 2013, the intake of LLW would have no effect on the void-space needed for hazardous waste. The site would not be full by 2013 even with the addition of the LLW waste stream. He notes that the intake of LLW until 2013 would only occupy void-space that would otherwise be used for hazardous waste if NCC were to grant an extension to the current permission beyond 2013. However, no application for this has been submitted and, like the Inspector, the Secretary of State attaches little weight to the argument of safeguarding hazardous waste void space (IR7.61)."
Relevant Statutory Material
The Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 ("the EIA Regulations").
" 2.-Interpretation.
(1) In these Regulations-
...'environmental information' means the environmental statement, including any further information [and any other information], any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;
'environmental statement' means a statement-
(a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to comply, but
(b) that includes at least the information referred to in Part II of Schedule 4...
3(2) The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.
Schedule 4 Part I
4. A description of the likely significant effects of the development of the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from:
(a) the existence of the development..."
Directive 85/337/EEC, pursuant to which the EIA Regulations were made.
Screening/Scoping
Screening of a planning application involves deciding whether it should be subject to an environmental assessment ("EA") or not. Scoping EAs involves deciding what an EA should cover.
In paragraph 46 of Commission v Spain [2004] E.C.R I-8253, the court said:
"The court has already held that the wording of Directive 85/337 indicates that its scope is wide and its purpose very broad (Kraaijeveld, cited above, paras. 31 and 39)."
In a number of cases, therefore, the domestic and European courts have ensured that, in deciding whether a development should be subject to an EA, that principle is followed. In particular, an EA cannot be avoided by presenting a number of applications for piecemeal developments for what is, in reality, one development (c.f. Commission v Spain , also Case C-142/07 Ecologistas en Accion-CODA v Ayuntamiento de Madrid ).
In the present case, the development was subject to an EA. The question is whether the ES included "such of the information referred to in Part I Schedule 4 as is reasonably required to assess the environmental effects of the development," having regard to paragraph 4 of Part I of Schedule 4's requirements, which I have already cited. In particular, it must be noted that the claimant's case is that the ES should have considered the impact of a future extension of the development both temporally and geographically.
The position as to the future extension as put before the Inspector is summarised by counsel for the claimant in this way in their skeleton argument:
"7. Augean, after making the application for planning permission, but before and during the Inquiry, confirmed that it would be making a further application for permission to significantly enlarge the effective area of the site by opening up new cells for receiving waste on land adjoining the presently active site and significantly extending the lifetime of its operation by 13 years ("the Further Application" for the Extended Landfill). Its intention was to apply to the IPC for a Development Consent Order in June 2011.
8. Augean's evidence at the inquiry was that:
(a) the extent of the site would have an additional 1 million cubic metres of void capacity;
(b) with a maximum permitted input rate of up to 249,999 tonnes of waste per annum until 2026 ... and;
(c) The Extended Landfill would include LLW disposal... (see also Augean's rule 6 para 10: "If granted, the intention would be to continue to dispose of LLW at the site over this period to 2026").
9. There is no dispute that the environmental effects of the Extended Landfill in both time and space would be significant; and the parameters of the Further Application, if not the detail of it, were indeed already clear.
10. The case for the Second Defendant ... prior to and at the inquiry was that the totality of the intended development should be assessed, including the cumulative and/or indirect effects of the Further Application, but that this had not formed part of Augean's ES. There is sufficient information available upon which such effects of e.g. the maximum parameters of LLW could be, and therefore should be, assessed. The Council's case was that a grant of permission for the appeal scheme would create a precedent and give Augean a "foot in the door" in respect of the Second Application, demonstrating that the effects of this should have been assessed in the appeal scheme's ES.
11. Augean's case on this issue at the inquiry in summary was that a) the two schemes were separate and self-contained; b) a decision on the appeal scheme would have no precedent effect on their Further Application and there would be "foot in the door"; c) therefore there was no need to assess the effects of the Further Application at this stage; and d)there was inadequate information available to assess in any event".
Further, based on paragraph 9 of the proof of Doctor Gene Wilson, the claimant says in the skeleton, paragraph 21:
"It can be seen from this that:
(a) an application for an Extended Landfill was known to be 'highly likely' and was known to be 'probable' since 2006;
(b) that application would 'shortly follow' the Permission.
(c) the application ' will generate' approximately 1M m3 and ' will include' LLW up to 2026. No maximum quantum of LLW is set out."
The claimant's skeleton also summaries the third defendant's arguments, or part of them, before the inquiry in this way:
"25. ...Augean argued that its intentions were of ' no direct relevance ' to the current application as ' that application would be separate from this proposal and would give rise to a very different set of considerations ', that the appeal proposal was not piecemeal development nor inevitably part of a more substantial development as ' if permitted, the development would be implemented regardless of the outcome of any further planning application ' and that it was ' impossible to carry out a cumulative assessment '. Augean argued that this was not a case of the developer getting a 'foot in the door' if the appeal was allowed ' given the temporary nature and short timescale of the proposal. If the appeal is allowed, it would neither predicate nor prejudice the outcome of the further application; conversely, if the appeal is dismissed, the further application would still be made '."
Finally in this section, I will set out two paragraphs from the proof of evidence of Mr Simon Aumonier, a witness for the second defendant. It said this:
"9.8 That part of the ES which deals with the cumulative effects (paragraphs 17.1 - 17.3) made no mention of, and did not address, what might be the cumulative effects of the submitted application and the intended further application. The Appeal scheme appears now to be part of a larger development. As a result of this piecemeal approach, this more substantial project will now have been subject, in its totality, to EIA. Its impacts have not assessed, and it has not been possible to balance these material considerations comprehensively. The aims of the Regulations and the EC Directive may have been frustrated as a result (see Circular 02/99, paragraph 46).
9.9 The proposed extension in time and capacity will affect consideration of the need for LLW landfill disposal over a longer timescale, and the fit of capacity at King's Cliffe with the 2010 LLW Strategy, the adequacy of the LLWR, other planned disposal capacity and the requirements of sources of LLW, such as RSRL. These issues cannot be considered in full as a result of the piecemeal approach, and it has not been possible to balance these material considerations comprehensively.
9.10 The information recently disclosed by the Appellant raises fresh considerations which have not been taken into account in the assessment of their proposals. The totality of its intended development has not been subject to EIA, and its piecemeal approach will confound this requirement. I respectfully submit that the Appeal should be refused on these grounds alone."
The Court's Approach
The claimant accepts that the orthodox approach hitherto has been to review the question of the practice of the sufficiency of an ES on Wednesbury principles, citing as example Brown v Carlisle City Council [2010] EWCA Civ 523, and R(Davies) v SSCLG [2008] (Admin) EWHC 2223. However, the claimant submits:
(i) That the court should apply a more rigorous standard of scrutiny to this question than the Wednesbury test permits;
(ii) In any event, the claimant's primary case is that the first defendant failed to ask itself the correct question in assessing the indirect/secondary/cumulative effect.
I shall refer to point (ii) in the next section of this judgment. In this section I will deal with point (i).
The claimant's argument is this:
(a) In order to comply with the requirements and spirit of Directive 85/337/EEC, the court should apply a more rigorous standard of scrutiny to the question of whether the environmental information was adequate, based on objective standards of proportionality and legal certainty, as opposed to the subjectivity-based Wednesbury approach.
(b) In support, the claimant relies on two cases:
(i) Case C-2/07 Abraham and others (2008) where, at paragraph 39, the court stated:
"It is for the national court to establish that the competent authorities correctly assessed whether the works at issue in the main proceedings were to be subject to an environmental impact assessment."
The claimant put particular emphasis on the words "correctly assessed", whilst accepting this was merely a screening case.
(ii) R(Buglife) v Medway Council and others [2011] EWHC 746 (Admin), where Judge Thornton QC said this:
"86 Buglife sought to raise as a discrete ground of challenge the question of the correct approach to be adopted by a court when addressing a challenge to the contents of an ES. Traditionally, a court applies Wednesbury tests to the decision of the planning authority that the ES contains sufficient details and that the planning decision sufficiently took the ES into consideration. Buglife wished to argue that the test is now more rigorous and involves a court in itself considering whether the ES sufficiently complied with the regulations. However, this interesting submission does not arise as an issue in this case. If, as I have found, the ES was intended for use, and was used, purely for the purposes of obtaining outline permission as the first stage of a multi-stage EIA process which would yield a further four EIA processes, the ES and the EIA process that were being challenged clearly sufficiently complied with the Regulations without the need for detailed analysis and, conversely, if the EIA process being challenged was to be the only EIA for this development, the Regulations were clearly not complied with. This is so, even if the Wednesbury tests are as narrow as was submitted in argument.
87 I will merely observe that English law is in a rapid state of flux in relation to this issue. The Administrative Court is now obliged to determine, as part of the judicial review process, antecedent factual conditions precedent. These would, or certainly could, include such matters as whether the ES contained sufficient data to enable it to pass muster as a required ES notwithstanding current authority suggesting that that question is a matter of discretion to be decided exclusively by the planning authority. Moreover, the trend in the law of the European Union, and of English courts when considering decisions arising from directives and other directly enforceable features of Community law, is to require the English courts to apply objective standards of proportionality and legal certainty instead of the subjectively-based Wednesbury tests. The challenge that Buglife wished to mount in this judicial review is, therefore, now awaiting an appropriate case. It is not one however that arises in this case."
The third defendant relies on the following examples of cases setting out the orthodox position and it says that in this case this court is bound to follow the orthodox position:
(i) R(Goodman) v London Borough of Lewisham [2003] EWCA Civ 140, where Buxton LJ (with whom Brooke LJ and Morland J agreed) dealt with the matter at paragraph 9.
(ii) R(Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin), Sullivan J (as he then was) at paragraphs 32-33.
The third defendant further submits that the ECJ has endorsed domestic judicial review procedures. See for example the Ecologistas case at paragraph 48.
I accept the third defendant's submission on this point and am bound to follow the orthodox position. It is only open to a higher court to change that position.
Ground 1
These propositions appear to be common ground:
(i) The Directive requires that account be taken of the effects on the environment of the development in question at the earliest possible stage in the decision-making process.
(ii) The development to be assessed is that for which permission is sought: R(Candlish) v Hastings BC [2005] EWHC 1539 (Admin) at 61.
(iii) The requirement to consider indirect et cetera effects of the development (EIA Regulation Schedule 4 Part I paragraph 4) is qualified by the words "reasonably required" in Regulation 2(1) and the word "likely" in paragraph 4.
The submissions as to the first defendant's error of law can be summarised thus:
(1) The known facts as to the prospective further application by the third defendant, and the first defendant's finding (para. 30 decision letter), that "the chances of permission for a future proposal for the landfilling of LLW at or adjacent to cells to be filled in this case would be enhanced", should lead the court to conclude that neither the Inspector nor the first defendant asked themselves the correct question.
(2) The question the first defendant should have asked is:
Given:
(i) the basic facts (all known to the SOS) relating to the Extended Landfill on the same site including progress on it, intention in respect of it and planning policy relating to it; and
(ii) my findings on (a) in acceptability of LLW on this site in the planning, harm, perceived harm and need terms; and (b) the precedent effect of my decision on the extended landfill on the same site
Is the prospect of the Extended Landfill reasonably foreseeable? If so, is the Extended Landfill a cumulative, indirect and/or secondary environmental effect of the Permission? And therefore should I assess its environmental effects (on the basis of the detail now available) at this stage before I give it a "foot in the door"?
The claimant says that the question the Secretary of State actually asked was:
"Given that this is a stand-alone proposal and can be assessed on its own merits, can I put off the assessment of Extended Landfill till later?"
(3) Had the Inspector and the Secretary of State asked the correct question, they would have necessarily concluded that the foot in the door was a "likely" indirect et cetera effect of the permission, which would "reasonably require" the ES to assess the environmental effects of the third defendant's future plans.
(4) Therefore, the ES should have covered the environmental effects of the broad parameters of the future proposal.
(5) On the grant of permission, the first defendant's conclusions on the "foot in the door" are inconsistent and incompatible with its conclusions as to the ambit of the ES and, therefore, his decision was irrational.
The claimant refers to the case of Brown v Carlisle City Council [2010] EWCA Civ 523 as the "current leading authority on this issue". In Brown , an application was made for the development of Carlisle Airport, including a new Freight Distribution Centre, replacement and realignment of the runway, and development of airport buildings. A scaled-down proposal was approved for the Freight Distribution Centre. The ES dealt with the effect of this development. However, it did not deal with the effects of other work (runway improvements and terminal building development), which were subject to a s.106 agreement.
The Court of Appeal held that the grant of planning permission had been unlawful because of the failure to comply with Regulation 3(2) of the EIA Regulations.
The headnote in the Environmental Law Reports helpfully summarises the decision:
"Held, in allowing the appeal:
It was difficult to see how the commitment in the s.106 agreement to bring forward the "airport works" could, on the one hand have been adequate to ensure that the "development as a whole" could be regarded as policy compliant for the purposes of the Development Plan, but on the other hand, insufficient to make the airport works part of the cumulative effects of the development for the purposes of the EIA Regulations. Whilst submissions had been made that the airport works were 'inchoate', and so were not required to be assessed at that stage, the difficulty was that they had been sufficiently detailed for assessment of the economic and other advantages which would result. The grant of planning permission had been unlawful as there had been a failure to comply with reg.3(2) of the 1999 Regulations."
Sullivan LJ (with whom Jacob LJ and Sir Mark Waller agreed) said this in the judgment:
"21. ...The answer to the question - what are the cumulative effects of a particular development - will be a question of fact in each case ... It is plain that the Committee did not consider the planning merits of the Freight Distribution Centre in isolation without regard to any of it cumulative effects. Considered in isolation the Freight Distribution Centre was not in accordance with the Development Plan. The 'development as a whole' was (rightly or wrongly, see paras 22 and 23 below) regarded by the Committee as 'policy compliant' only because one of the cumulative effects of the development would be the 'delivery' of the airport works through the mechanism of the Section 106 Agreement. The Section 106 Agreement did not permit the airport works, nor did it compel the Interested Party to carry them out, but it did ensure that the Freight Distribution Centre could not lawfully be developed (built and occupied) in isolation, it could be developed only if its cumulative effects included the carrying out of the airport works...
24. In support of their submissions both the defendant and the Interested Party relied on the decision in R (on the application of Davies) v Secretary of State for Communities and Local Government [2008] EWHC 2223 (Admin) ... However, that case is clearly distinguishable because the evidence before the Inspector had established that the Heysham to M6 Link Road (for which there had been an Environmental Statement) was justified in its own right and would be constructed whether or not a proposed Park and Ride Scheme, which was the subject of a separate application, was permitted. There was no Section 106 Agreement preventing the construction and use of the link road until the Park and Ride Scheme had been commenced.
25. There is a further difference between the Davies case and the present case. In Davies the Inspector in his report to the Secretary of State expressly considered whether the Park and Ride Scheme was 'an integral part' of an overall scheme which comprised both the Link Road and the Park and Ride Scheme. He concluded that it was not an integral part of such a scheme, and there was no irrationality challenge to that conclusion. In the present case there is no evidence that after the second application was submitted either the Planning Officer or the Committee ever addressed their minds to the question: given our insistence upon a legally binding commitment to the airport works in order to ensure that this application is policy compliant, should the Environmental Statement consider the environmental effects of those works as part of the cumulative effects of the development for which permission is being sought? Had the Committee considered that question an affirmative answer would have been the only rational response...
28. Mr Village QC submitted that it was unnecessary to include information as to the environmental effects of the airport works in the Environmental Statement because these works were 'inchoate'. In the absence of sufficient detail of the airport works it was not reasonable ... to require an assessment of their environmental effect as one of the cumulative effects of the development. He referred to the provisions of the agreement which require substantial completion of a terminal building with a floor space of no less than 400 square metres while leaving open the possibility of a planning application for a terminal with a floor space in excess of 500 square metres...
29. This submission is not well founded for two reasons. First, there is no evidence that this was the basis on which the Defendant considered whether the environmental effects of the airport works should be assessed as part of the cumulative effects of the development and concluded that they should not. Second, any lack of detail about the airport works was not such as to prevent the defendant from assessing, with the assistance of advice from EKOS and ASA the economic, transportation and tourism advantages of securing their implementation through the mechanism of the proposed Section 106 Agreement. Thus, EKOS was able to assess the market potential for both commercial passenger and air cargo operations ... and ASA was able to describe what was likely to be provided by way of passenger terminal facilities and to provide a specification for the repair/renewal of the existing main runway. ... ASA was also able to advise by reference to the likely number of Air Traffic Movements ... on the 'safety issues' arising out of the use of the new facilities at the airport...
39. Mr Jones submitted that there was a fundamental objection to the course which commended itself to Owen J. The underlying purpose of the Directive is that the environmental effects of a development, including any cumulative effects are considered at the earliest possible stage in the decision making process: see R (Barker) v. London Borough of Bromley [2006] UK HL 5 2 ... per Lord Hope at para 22. If a decision is taken to permit a development on the basis that any cumulative environmental effects of carrying it out will be considered at some future stage there is the danger that the developer will have obtained a 'foot in the door'. Even if the later assessment of the cumulative effects might otherwise lead to a conclusion that those effects were unacceptable, the local planning authority would be committed to the development for which permission had been obtained, and that commitment would be a relevant factor in deciding whether cumulative environmental effects which might have been regarded as unacceptable if they had been considered at the outset, must be accepted at the later stage given the prior commitment.
40. In the present case, the s.106 agreement leaves open the possibility of a completed but unoccupied Freight Distribution Centre. That possibility might well be an unlikely outcome for commercial reasons, but the fact that permission had been granted for the Freight Distribution Centre would be a relevant factor when deciding whether the cumulative environmental effects of the airport works, including the effects of the Freight Distribution Centre, were such as to justify a refusal of permission. Since the object of both the Directive and the Regulations is to ensure that any cumulative environmental effects are considered before any decision is taken as to whether permission should be granted, an assurance that they will be assessed at a later stage when a decision is taken as to whether further development should be permitted will not, save perhaps in very exceptional circumstances, be a sufficient justification for declining to quash a permission granted in breach of regulation 3(2) and/or the Directive."
I would, finally, cite some paragraphs from the Davies case, which was distinguished on its facts in Brown . Sullivan J (as he then was) said this in Davies:
"48. That leaves the claimant's submission that the defendant erred in not concluding that the Park and Ride scheme was 'an integral part' of the overall scheme so that the Environmental Statement should have considered the cumulative effect of both the link road and the Park and Ride scheme. The short answer to the submission is that whether the Park and Ride scheme was or was not 'an integral part of ... a more substantial development', namely the link road, was very much a matter of planning judgment for the Inspector and the defendant. Having minutely examined the scheme over a period of weeks, the Inspector was the person who was best placed to decide what was, or what was not, comprised within it...
53. In the present case, both the Inspector and the Secretary of State did consider whether the Park and Ride scheme and the link road were parts of a single scheme and concluded that they were not, and there has been no irrationality challenge to their conclusions in that respect. As was submitted by the interested party to the Inspector, the claimant's submission to the Inspector effectively turned the judgment in the Swale case on its head. There was no question here of a developer slicing up a substantial development proposal into smaller components so as to 'defeat the object of the Regulations by piecemeal development proposals'. The link road had been the subject of an Environmental Impact Assessment. The defendant correctly concluded that any Environmental Impact Assessment necessary for consideration of the Park and Ride scheme, which was a separate scheme, should form part of the decision-making process in relation to that application."
There is no doubt that the Brown decision (whilst clearly a scoping case) is distinguishable on its facts, since (paragraph 21) the s.106 Agreement ensured that the Freight Distribution Centre could not lawfully be developed in isolation; it could only be developed if its cumulative effects included the carrying out of the airport works. In other words, the airport works were integral to the permitted development; hence the question (paragraph 25), which had not been addressed, and to which there was only one rational response.
In the present case, the permitted developments can go ahead irrespective of the future proposals. That was the finding of the Inspector, who said that this was a "stand-alone proposal". It is not in truth one integrated development such as the Carlisle Airport development in Brown ; or the Madrid ring road project in the Ecologistas case; or the Mediterranean Corridor rail project in Commission v Spain (The last two cases, it has been noted, are, in any event, screening not scoping cases).
The claimant does not challenge the Inspector's finding, or the first defendant's decision, that this was a stand-alone project.
This case is not on all fours with either Brown or Davies . The first defendant in the present case found that the chances of permission for a future proposal would be enhanced for the reasons in paragraphs 7.69-7.71 of the IR. The claimant submits that this is critical and, in accordance with the observations of Sullivan LJ at paragraphs 39-40 of Brown , require that the environmental effects of the future developments should have been considered as part of the cumulative effects of this development.
I do not accept the claimant's case on ground 1 for the following reasons:
The starting point is that the first defendant found, and the claimant does not challenge, that the present application is not part of a piecemeal proposal or an integral element of a comprehensive scheme (IR 7.73). In other words, it is accepted that it is a stand-alone proposal.
The question the first defendant had to ask was whether the ES included such of the information referred to in Part I Schedule 4 as is reasonably required to assess the environmental effects of the development. That information being a description of the likely significant effects of the development on the environment, which should cover ... any indirect secondary, cumulative ... effects of the development resulting from the existence of the development.
The claimant submits that in paragraph 7.72 the IR poses two questions and answers only one. The question it answers is whether the application is part of a project that should be the subject of a comprehensive application (the stand-alone point). The question it does not answer, claims the claimant, is whether the ES should have assessed the totality of the cumulative effects.
I remind myself that IRs and decision letters should not be read over-legalistically. The claimant points to the word "consequently" in the IR at paragraph 7.73, and "As" in paragraph 7.74. However, reading those paragraphs as a whole, I do not accept that the Inspector did misdirect himself by assuming that if the application was a stand-alone application, therefore it must necessarily follow that there were no indirect secondary or cumulative effects from any future proposal.
He not only said that the application could be considered on its own merits, but went on to say that:
(a) He took account of the relevance of the precedent argument;
(b) That there were no details of any future proposals, and;
(c) He could see no reason why the appeal should not be dealt with on its own merits.
Perhaps more importantly still, the first defendant expressly said in paragraph 4 of the decision letter that not only did he agree with the Inspector that there was no reason why the proposal could not be dealt with on its own merits, but also "There is nothing to support the Council's claim that permission in this case would frustrate the aims of the Environmental Impact Regulations and the Directive." I therefore do not accept that the IR and the decision letter evidence a failure to ask and answer the correct question.
The claimant submits that because of the finding as to precedent and the facts of the present application plus what was known about potential applications, together with the in principle decision to permit LLW, these together lead inevitably to a consideration of cumulative effects.
But the first defendant specifically dealt with this in paragraph 30. He accepts, in allowing the appeal, the chances of permission for a future LLW proposal at or adjacent to the present cell would be enhanced. But he continued:
"However, each application must be considered on its merits and having regard to material circumstances at the time."
The first defendant was, in my judgment, entitled to make that finding and come to the conclusion that the ES did not have to address the indirect, secondary and cumulative effects of a future proposal as part of the information reasonably required to assess the environmental effects of this development.
The claimant took me to the 1999 guidelines as to what indirect, secondary and cumulative effects mean. However, none of those guideline definitions assist on the central question. In so far as cumulative effects refer to "impacts that result from incremental changes caused by other ... reasonably foreseeable actions, together with the project", this does not prevent the first defendant from concluding lawfully that, despite the precedent effect, any future application could and should and would be "considered on its merits and having regard to material circumstances at the time".
The claimant also submitted that, had the first defendant asked himself the correct question, the answer would have been clear that, on the facts of this case, the ES should have considered the indirect et cetera effects of this proposal, namely the broad parameters of the future proposal.
As to this, and looking at what the claimant submitted was the question the first defendant should have asked, and the question the first defendant did in fact ask (see paragraph 55(2) above);
(a) I do not accept, for the reasons stated, that that is the question the first defendant should have asked. (See paragraph 45 above);
(b) I do not accept, for the reasons stated, that the claimant's formulation of the question that the first defendant did ask himself is correct. (See paragraph 46 above)
The court heard argument about the fact that on this permission the first defendant has accepted the third defendant's case as to policy compliance, actual harm, perceived harm, need for LLW disposal capacity, and physical/technical justification for the location.
But these points were all considered by the IR (paragraphs 7.69-7.75) and the decision letter (paragraphs 4 and 30), and yet, if, as I have found, the first defendant did ask himself the right question, he replied by rejecting the arguments that permission would frustrate the aims of the EIA Regulations or the Directive, and by making it clear that, notwithstanding precedent, any future application would be considered on its merits and having regard to material circumstances at the time. This was a planning decision which he was lawfully entitled to make; it has no taint of irrationality.
The claimant submitted that the finding in the IR (para. 7.73) that "at present, there are no details of any future proposals" was plainly wrong in the light of the information before the inquiry. Alternatively, there would have been more information if the ES had covered the broad parameters of future proposals. The first defendant submits that the inquiry had only general parameters of future proposals and the Inspector was entitled to say what he said.
On this point, I accept paragraph 31 of the first defendant's skeleton, which states:
"31. In addition, the court in Brown rejected the argument that it was not possible or reasonable for the likely effects of the airport work to be assessed because of the lack of detail: 28 to 29. The findings in 29 are distinguishable from the present case on their facts, and the court does not say that the fact that a potential future proposal is inchoate or unformulated cannot in principle contribute to the judgment that such a proposal need not be assessed as a cumulative effect. In this case, the Inspector and the Secretary of State made a finding of fact (IR7.73. DL4) that a future proposal lacked detail. That was a rational conclusion germane to the overall judgment made by the Secretary of State.
Paragraphs 39 and 40 of Brown contain comments by Sullivan LJ, dealing with relief, having already determined that the s.106 works were parts of the cumulative effects of the scheme.
The facts of the present case do not justify these particular words in paragraph 39 of that judgment:
"Even if the later assessment of the cumulative effects might otherwise lead to a conclusion that those effects were unacceptable, the local planning authority would be committed to the development for which permission had been obtained, and that commitment would be a relevant factor in deciding whether cumulative environmental effects which might have been regarded as unacceptable if they had been considered at the outset, must be accepted at the later stage given the prior commitment."
Ground 2
The relevant paragraphs of the IR and the first defendant's decision are 7.61 and 26 respectively. These I have already quoted.
The claimant submits that allowing LLW on the site until 2013;
(i) will reduce the capacity available for HW in the existing consent space after 2013, and;
(ii) the precedent effect will make an HW allocation more likely to be taken instead, at least in part, by LLW. The claimant contends that this has an obvious knock-on consequence for the likelihood of further permission being granted, and this was not assessed by the first defendant.
(iii) that it is likely that reducing the capacity of HW in the short term means there would be a greater need in the medium term, therefore the ES should have considered these indirect and secondary effects so as to comply with the EIA Regulations and the Directive.
I reject the contentions in support of ground 2 because;
(a) the inspector and the first defendant found that little weight should be attached to post-2013 HW capacity. They were entitled, in my judgment, so to find.
(b) I also adopt and agree with paragraph 36 of the third defendant's skeleton, which says this:
"In any event neither of these points can be described as:
(i) A principal controversial issue, or main point in issue, which called for reasoned consideration of the IR or DL ( South Buckinghamshire DC v Porter (No 2) [2004] 1 WLR 1953 [41]-[42] per Lord Brown; or
(ii) A 'main effect' on the environment which falls within Schedule 4 Part II and had therefore to be included in the ES.
Summary
For those reasons, the claimant's case is dismissed on both grounds.
MR WARREN: My Lord, in those circumstances, I ask for an order dismissing the application, and for the claimant to pay the costs of the first defendant in this application.
My Lord, the matter of costs is covered by, as you know, a PCO, and discussions have taken place between the claimant and the first defendant, leading, I am told, to an agreement that, as capped within the PCO, the first defendant's costs should be paid, if the principle is accepted, at the capped level, which I am told is £5,000.
THE DEPUTY JUDGE: And there is no other order as to costs, is there?
MR MCCRACKEN: Mr David Holgate, sitting as a Deputy High Court Judge, ordered that, so far as we were concerned, there should be no order in our favour or against us.
MR BUXTON: My Lord, the question of costs is agreed.
THE DEPUTY JUDGE: So, the order so far is order 1, the application is dismissed; 2, the claimant to pay first defendant's costs in the sum £5,000; 3, no other order as to costs.
MR BUXTON: Yes. My Lord, my client seeks permission to appeal. I would submit that this is a situation where there are not only real prospects in an appeal itself, given the particular factual situation, but also this is probably the first case which is truly -- well, it is the case, as Mr Forsdick put it yesterday, where we are dealing with a stark case of the improper understanding of the expression "indirect, secondary or cumulative effects", which needs to be dealt with by the court. Also, the standard of review, as quoted in your Lordship's judgment, from HHJ Thornton's judgment in Buglife , casting doubt on, effectively, the standards that the court applies. This is a matter which one accepts that it may not be open to this court to deal with but certainly is open to the Court of Appeal, and possibly on a reference to the European Court -- I say the European Court in the light of the decision in Abraham , where, arguably, it is this court's job, the domestic court's job, to look at as to whether -- to quote the Abraham 's paragraph, I hope I remember it properly -- "the decision-maker has correctly assessed the position".
Your Lordship will realise that as far as obtaining permission to appeal is concerned, very often the court will say -- quite understandably so -- "That is a matter for you to get it from the Court of Appeal." We are, in one sense, neutral about that but what I can say is that the permission process is a time-consuming process because it involves a paper application, there are sometimes issues as to protective cost orders, and essentially it takes a lot longer than if permission is granted by the High Court. We are conscious -- and it is in fact in the bundle -- of the wish of Augean to get on with their proposals so that the matter can be resolved as soon as possible one way or the other. Those are not, of course, legal reasons for giving permission to appeal but they are highly practical ones, particularly given the fact that the Court of Appeal, when the application for permission, if such it was, is a court of final instance for the purposes of Article 267.
My Lord, if your Lordship were to grant permission to appeal, we would be highly co-operative in expediting that for the interested party. As for other practical matters, I will await your Lordship's decision.
MR WARREN: My Lord, the Secretary of State resist the application for permission to appeal on two short grounds, both under the heading that an appeal would not stand a reasonable prospect of success.
The first point is that your Lordship's judgment and this case is an application of clear existing law as to the facts of this matter.
The second, as to the standard of review, there is no proper basis, in the Secretary of State's submission, in either Buglife or in Abraham , at paragraph 39, for the national court to alter its scope of review, and so on those two points, my Lord, the Secretary of State would ask you not to grant permission to appeal.
MR MCCRACKEN: My Lord, in response to my learned friend Mr Buxton's beguiling invitation, attractively presented though it was, I would respectively adopt the two points that my learned friend Mr Warren has made and add to them only this: in Buglife , which was a case in which I was involved --
THE DEPUTY JUDGE: I had noticed that.
MR MCCRACKEN: Judge Thornton, although he made the observations that he did, refused permission to appeal. So he did not, evidently, consider --
THE DEPUTY JUDGE: No, of course, they did not arise in that case.
MR MCCRACKEN: Well, yes, that is a perfectly fair point, I accept that. But I would also remind your Lordship of paragraph 7 to 11 of our supplementary skeleton argument, in which we discuss the approach which the Court of Justice has taken to standard of reviews.
THE DEPUTY JUDGE: I am going to refuse permission. I can see that the Court of Appeal may be interested in the standard of review but I do not think, based on some comments of Judge Thornton, that is sufficient for me to give permission. It is up to the Court of Appeal to decide that. Permission is refused but I shall fill in the form as appropriate in this case.
MR BUXTON: Thank you, my Lord. Could I make a number of supplementary requests, therefore?
THE DEPUTY JUDGE: Yes. Can I just fill in the form, whilst it is in my mind.
(A short pause)
THE DEPUTY JUDGE: Order for permission to appeal is refused.
MR BUXTON: My Lord, I just wanted to make some practical requests. In order to make an application for permission to appeal, it helps enormously -- particularly as my notetaking of your Lordship's judgment is not that good -- to have a draft transcript and I wonder if it is possible to make an order for there to be, first, an expedited transcript, and, secondly, for your Lordship's ability to approve it, for the draft transcript to be made available to us as soon as it is prepared.
THE DEPUTY JUDGE: The draft will be approved within 48 hours of receipt, I can tell you that.
MR BUXTON: My Lord, I am very pleased to hear that. It is not what always happens.
THE DEPUTY JUDGE: There is only one period when I am out of the country, which is 3 days beginning 12 December; apart from that period, I will be looking at approving it within 48 working hours of receipt.
MR BUXTON: My Lord, that is very helpful. If we could have a period of time from the receipt of the approved expedited transcript to lodge the appellant's notice, that would be helpful. The normal period is 21 days from today. If the transcript is in fact available within, for example, 7 days of now that is not a problem but we will need some time to consider it in order to lodge grounds and prepare a skeleton argument. I am very willing to assist the shorthand writer with electronic copies of some of the material that your Lordship has quoted, if that helps.
MR MCCRACKEN: My Lord, so far as we are concerned, Mrs Graham Paul's typescript of your Lordship's judgment will be available this afternoon. She will circulate that amongst counsel for their consideration, so that any practical difficulties associated with awaiting a transcript will not arise in this case. As the Court of Appeal observed in Harty v Hertsmere , in one of the interlocutory applications, before that case was considered by the Court of Appeal -- it was conjoined with South Buckinghamshire v Porter -- it is counsel's duty to take a note of ex tempore or otherwise oral judgments and then to seek to agree it, and, if they cannot agree it, then rival copies of counsel's notes must be made available to the Court of Appeal.
So, whist we are entirely supportive of expedition of the official shorthand writer's transcript of your Lordship's judgment, we see no impediment to any application for permission to appeal being made on the basis of Mrs Graham Paul's typescript, with whatever amendments Mr Buxton and his team wish to make in any rival version that they submit.
(A short aside with the shorthand writer)
THE DEPUTY JUDGE: It looks like you are going to get the transcript before the end of next week, so I am not minded to do anything apart from that.
MR BUXTON: In that case, my Lord, my request has been academic but, if we apply for permission to appeal, it will be done within 21 days.
THE DEPUTY JUDGE: I can assure you that if it arrives with me electronically next week, I almost guarantee within 24 hours, but certainly 48 hours, barring illness.
MR BUXTON: My Lord, that is very helpful.
I have one further request, my Lord. This is a very important request. We are dealing here with the deposit of nuclear waste in the site at King's Cliffe, and, once deposited, it is very difficult, I understand, to remove: it is a done deal. Up until now, my understanding is that Augean have agreed voluntarily not to exercise their planning permission until these proceedings are resolved, and I am seeking the same undertaking from them in relation to continuing this matter until the Court of Appeal has had an opportunity to deal with it. I am hoping it will be done on the basis without a court order but I have not yet had an indication from Augean as to what their intentions are.
MR MCCRACKEN: My Lord, your Lordship appreciates the urgency so far as my clients are concerned and so far as the nation is concerned, as they understand the nation's interest, in the implementation of this permission. In light of your Lordship's judgment, it seems appropriate that it should be the Court of Appeal that expresses a view on whether or not there should be, effectively, a suspension of the planning permission. But to enable to that take place, my clients are prepared to undertake not to implement the permission until noon on Monday 14 November, to give my learned friend and his team time to approach the Court of Appeal and ask the Court of Appeal to give an indication of its view on the merits of, what would effectively be, a stay. The Court of Appeal is able to move with speed in these matters and that ought to give ample time for my learned friends to prepare the material that would enable the Court of Appeal to see what the issues are and then to come to its own view on whether it would be appropriate for that undertaking to be extended.
MR BUXTON: My Lord, this is effectively contracting our period for appeal, and if, for example, the transcript were not available until the middle of next week, it is going to put extreme pressure on us and then the Court of Appeal. This is one of these matters where, I am sure your Lordship will appreciate, there is some urgency, but it is not the sort of urgency which I think is to exercise the Court of Appeal in a matter of a day or two, I think the Court of Appeal should have in the region of two weeks or some appropriate period to consider.
THE DEPUTY JUDGE: I would hope that unless the Court of Appeal determines against you earlier, that Mr McCracken's clients might -- and if they will not, I will have to make a decision -- give that undertaking until 4 weeks tomorrow, unless the Court of Appeal make a decision earlier.
MR MCCRACKEN: May I just be clear, your Lordship is asking me to take instructions on an undertaking for 4 weeks?
THE DEPUTY JUDGE: 4 weeks tomorrow.
MR MCCRACKEN: Would your Lordship give me 5 minutes to take instructions? Because it is plainly a matter on which I ought to take instruction.
THE DEPUTY JUDGE: Certainly.
MR MCCRACKEN: If your Lordship would rise for 10 minutes, I imagine that would probably be sufficient time.
THE DEPUTY JUDGE: Do you need the use of the court to do it?
MR MCCRACKEN: No, we will go outside.
THE DEPUTY JUDGE: I will stay here. It will take me 10 minutes to get back to my room. But do not feel under pressure.
MR MCCRACKEN: If your Lordship will forgive me, I will withdraw even though your Lordship is on the bench.
(A short pause)
MR MCCRACKEN: My Lord, I have taken instructions from my clients. They are happy to undertake not to implement the permission for 4 weeks from today, to give the Court of Appeal an opportunity to decide what should happen thereafter.
THE DEPUTY JUDGE: I will not take that as a formal undertaking to the court, that is just an agreement between the parties.
MR BUXTON: My Lord, that is satisfactory.
MR MCCRACKEN: Of course, we will expect that whatever is sent to the Court of Appeal, that copies of it will be sent to us so that we can make an appropriate response.
MR BUXTON: Yes, of course.
THE DEPUTY JUDGE: Anything else?
MR BUXTON: I think that is all, my Lord.
THE DEPUTY JUDGE: Thank you very much.