Save Britain's Heritage, R (on the application of) v The Secretary of State for Communities and Local Government

This is a case about salami slicing. It is a claim for judicial review of the decision of the Secretary of State for Communities and Local Government dated 6 January 2012 that Environmental Impact Assessment should not be required for the demolition of a Victorian Chapel in the Klondyke area of Sefton.

The principal ground of challenge is the assertion that the Secretary of State’s failure to consider the demolition as part of the Phase 2 and 3 demolition and redevelopment proposals of the Sefton Metropolitan Borough Council (“the Council”) in the Klondyke area and his failure to have regard to the impact of the project or to consider the cumulative effects of the demolition was unlawful. The second ground is an assertion that the Secretary of State’s reasons for considering that the impact of the demolition together with the redevelopment of the chapel site and the previous clearance and the further redevelopment of Phase 1 were not likely to give rise to significant effects were neither adequate nor intelligible.

Under its first ground of challenge the Claimant argues that as a matter of fact the Council’s proposed demolition of the Chapel was part of a larger project comprising Phases 2 and 3 of its proposed redevelopment of the Klondyke area of Sefton. Accordingly the Secretary of State was obliged in his screening direction to consider the demolition of the Chapel not on its own but as part of that larger project. His assertion that screening of Phases 2 and 3 was premature because no application for prior approval had been made with respect to it and his consequent consideration of the effects of the Chapel demolition without regard to any other demolition or redevelopment in Phases 2 and 3 was unlawful.

On behalf of the Secretary of State Mr Forsdick submitted that “salami slicing” is the term applied to the splitting up of projects into small sub-projects with the effect of each part coming below the thresholds for Environmental Impact Assessment (“EIA”) and therefore avoiding (whether deliberately or not) the need for EIA. In the two leading Spanish cases a single long distance rail construction project was split into small “local” projects with the result that the section in question ( and the project as a whole) was not subject to EIA (Commission v Spain [2005] Env LR 20 [52]-[54] and a single project for the upgrade of the Madrid Ring road was split into 15 sub-projects with the result that the section in question (or the project as a whole) was not subject to EIA (Ecologistas nen Accion v Ayuntamiento de Madid [2009] PTSR 458 [25], [44]-[45]. In both cases it was held that that approach was impermissible under the Environmental Impact Assessment Directive 2011/92/EU (“the Directive”). It impermissibly constituted what is commonly called “salami slicing”. The true project was in each case in fact the wider whole – the complete ring road or the long distance train line.

Mr Forsdick submitted that the legal principle applicable on the facts of this case is that at the screening stage a project should not be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development – see the test enunciated by Simon Brown LJ in R v Swale BC ex parte RSPB [1991] JBL 39. However it was submitted that there is a distinction between projects which are an integral part of an inevitably more substantial development which Mr Forsdick submitted involves a single project being split into parts as in the two Spanish cases and individual projects which are justified on their merits and/or which would be pursued independently of some wider policy, even if the development, or as in this case the demolition, involved could at some future point also be part of a more comprehensive proposal. In the latter case there is no salami slicing and no unlawful or impermissible avoidance of the EIA regime.

He submitted that there is no inconsistency between a project being both a separate, independent and/or freestanding project now and also potentially at some future point part of a wider whole.

The Klondyke area of Bootle was developed in the last decade of the 19th century and took its popular name from the Alaskan Gold rush of 1897-8. The Orrell Chapel, Springwell Road, Sefton, also known as the Welsh Presbyterian Church (“the Chapel”) was built in 1902.

In April 2002 the previous Government launched the housing market renewal initiative (“HMRI”) which was aimed at tackling issues of empty housing and neighbourhood decline within Pathfinder areas. The initiative provided money to help restructure the housing market so that housing could be redeveloped. Klondyke is an area of Sefton dominated by small two-storey Victorian terraced housing with no front or back gardens.

In July 2004 the Council published Supplementary Planning Guidance (“SPG”) in relation to Klondyke. The Council stated that it would use the guidance as a material consideration when deciding on development proposals within the Klondyke and Hawthorn Road area. It set out in more detail how the Council would apply the policies of the draft Sefton Unitary Development Plan and would expect developers to show how their proposals dealt with the issues covered in the guidance when putting forward planning applications. It stated that it would use the document to make sure that the right development took place at the right time and to support its use of compulsory acquisition powers if necessary. It further stated that the SPG identified where redevelopment would take place and where new homes would be built. It stated that some of the proposals in the document might need to be revised and updated. It further stated that it would use the information contained in the SPG to prepare development briefs for the area which would provide more detailed information about how the new areas would be developed, including where new shops and open space would be located and which areas would be redeveloped for industrial and commercial use in respect of which there would be consultation.

The SPG stated that it was one of a number of planning policy documents that would be relevant to redevelopment proposals in the area and a diagram showing how it fitted in to the hierarchy of planning policy documents showed that it fitted in beneath the emerging unitary development plan and design and development briefs which in turn came before planning applications.

The SPG stated that the Council would support development proposals for the Klondyke and Hawthorn Road corridor area if they would help to regenerate the neighbourhood in a planned way and reflected the phasing requirements set out in the Guidance. Those requirements were set out in four tables which referred to three phases. The first table was headed “Klondyke phase development programme, units to be cleared and sites identified for re-housing”. Each phase identified a number of units to be cleared; Phase 1 was headed 2004-2008. Phase 2 was headed 2006-2009 and Phase 3 was headed 2008-2012. Phase 1 provided for 320 units to be cleared, Phase 2 380 and Phase 3 130. The fourth table stated that there would be no re-housing potential in phase 3 “as this is the last area to be developed” but that the area covered by phase 3 would be able to accommodate 40 new homes in the long term. Phase 2 would have the potential for re-housing 165 but would not be available until current residents were re-housed.

The Chapel was described as a landmark providing “variety and interest within the built environment” which should be preserved. The plan in the Supplementary Planning Guidance showed the Chapel outside the proposed clearance area.

In November 2004 the Council published a Development Brief to guide future redevelopment of the Klondyke and Canal Corridor area. It was to be read in conjunction with the Supplementary Planning Guidance. It was stated that the redevelopment of the sites covered by the brief (Phases 1 and 2) would be phased to ensure the successful relocation of the existing residents, community facilities, shops and businesses within the Klondyke estate who wished to stay in the local area.

The Development Brief did not in its text refer to Phase 3. However it included a map which identified sites subject to Phase 1, Phase 2 and Phase 3 development respectively. The Chapel was shown in Phase 3 development to become open space as part of an enlarged Aspinall’s Field and the Brief identified the provision of green space from different development phases. Preferred sites for green space were identified as adjacent to the canal and at the extended Aspinall’s Field which in the map included Klondyke Phase 3. It also stated that the remaining areas identified in Figure 1 of the SPG (ie Phase 3) were not the subject of the Development Brief. Further development briefs would be produced for those sites at a later date.

The Brief envisaged the removal of an existing number of community and leisure facilities and suggested replacement provision for the two churches in the area, one of which by inference was the Chapel. Thus the Brief at least by implication envisaged the demolition of the Chapel and the clearance in Phase 3 and its laying out as open space as part of the Landscape Strategy.

In October 2005 the Council commissioned the HMR Klondyke area Community Facilities Study from the Neighbourhood Initiatives Foundation. The report said that the Chapel was “currently included in the last phase of the redevelopment proposals and that initial discussions had been held with the Pastor and Sefton MBC about acquiring the Church building”. It stated that the Chapel’s “future in the Supplementary Planning Guidance is for eventual acquisition and demolition to make way for open space.” [This appears to have been incorrect – see paragraph 12 above.] We believe that a feasibility study should be carried out to consider the retention of this building in the future”. The report stated that the Chapel’s location in Phase 3 of the development programme meant that it offered the community the opportunity for medium to long term use as a community facility. I was told that this report has been on the Council’s website since 2006.

The Study referred to Policy H7, Housing Renewal, Clearance and Regeneration of the Sefton Unitary Development Plan as follows:

The Commission for Architecture and the Built Environment had recommended that the Development Brief be reviewed to investigate the potential for retaining and reusing buildings with existing character and landmark potential such as the Welsh Presbyterian Chapel but that was not pursued by the Council as recorded in a Cabinet report dated 20 April 2006.

Between 29 October 2009 and 21 October 2011 there were a series of prior notifications for the proposed demolition of properties in the Klondyke Housing Market Renewal Area and the properties concerned were demolished.

In July 2011 three councils, Liverpool, Sefton and Wirral submitted a bid for HMR Transition Funding. It stated that for the areas where Transition Funding was being sought it would be used to further the delivery of master plans for those areas. The Transition Fund would facilitate acquisition and site preparation. Once they were prepared they would be developed by the private sector and registered social landlords to provide a wide range of new sustainable and affordable housing.

As regards the Klondyke area the document stated that the exit strategy must ultimately result in the sites earmarked for redevelopment being completed. I was told that that was a reference to the sites in phases 2 and 3. It was said that that would require the following steps to be implemented; (1) acquisition of all remaining property interests, with property adequately secured until demolition could be implemented, (2) demolition of all obsolete properties, (3) temporary treatment of sites pending new development and implementation and completion of new development.

The document stated that the master plan for the Hawthorn Road/Klondyke ADF area identified 15.39 hectares of contaminated former industrial land for development and 830 properties on the Klondyke estate for redevelopment. Bellway Homes had been appointed by the Council as preferred developer and Adactus Housing had been appointed as the “lead Registered Provider.” Both continued to work in partnership with the Council in the area. The following had been achieved to date:

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It was stated that for the Klondyke estate site assembly had been completed on phase 1a and development by Bellway Homes was due to commence in 2013. Site assembly of the remaining phases was also very well advanced. Of all the properties in the ADF still earmarked for redevelopment only 43 were left to acquire. In total there were 80 households still to be re-housed including RSL tenants.

Under the heading “Further Works” the document stated that if funding could be secured to complete assembly and preparation of the site it was the intension of Sefton and its partners to develop the land as originally intended. If the development of that phase could not be achieved the Council would provide the additional investment necessary to carry out a basic landscape treatment on the land for interim use by the community as informal play space.

On 8 September 2011 the Claimant wrote to the Defendant requesting him to make a screening direction under regulation 4(7) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”) that an Environmental Impact Assessment (“EIA”) was required for Klondyke Phase 2 and 3.

The letter stated that from 2003 until currently the Council had implemented a policy in partnership with its RSL partners, latterly Adactus Housing Association to empty its properties in the Klondyke residential area and not let them. The whole of the Klondyke estate had originally been about 1000 properties. Earlier phases of redevelopment had all but nearly demolished 500 properties in Phase 1a and 1b. At the date of the letter in Klondyke phase 2 and 3 approximately 66 residential homes were occupied from a total of approximately 483 homes.

Reference was made to a decision of the Council at Cabinet on 25 October 2010 to agree a licence with Adactus Housing Association to demolish the properties in Klondyke phase 2 and 3. The minute of the meeting was that “approval be given to the Council entering into a licence to allow the Council to demolish vacant properties owned by Adactus in the Klondyke area of South Sefton subject to the financial resources being available to do so.” 204 properties were owned by Adactus with 160 vacant in addition to the 168 purchased by the Council with vacant possession, a total of 328 vacant properties. There were approximately 66 homes currently occupied.

Although the letter referred to the Chapel as being in the Klondyke estate and still intact it did not identify it as falling within Phases 2 and 3 or being among the properties to be demolished in those phases. It was submitted that the proposed demolition of the 483 properties in Klondyke phase 2 and 3 was likely to have significant effects on the environment. The following matters were emphasised. They did not include any reference to any alleged or even suggested possible adverse effect on the environment specifically attributable to the demolition of the Chapel, to which indeed there was no specific reference.

“The proposed demolition of the 483 properties in Klondyke Phase 2 & 3 is likely to have significant effects on the environment. You will need to consider all the details of the scheme, but we draw attention to the following matters.

Attached to the 8 September 2011 letter was the Council’s Cabinet Report in relation to the licence to demolish dated 25 October 2010. That report stated that as part of the HMR programme for the Klondyke area the Council was currently acquiring properties for demolition from private owners, both owner occupiers and private landlords, as and when residents were re-housed or properties became vacant in most of the area known as phases 2 and 3. Under the normal course of events the council would buy properties from Adactus which owned approximately 204 houses in the area as they too became empty. Given the constraints on the council’s resources and on the grant in aid Homes Communities Agency for the HMR programme it had been agreed that, in lieu of the Council buying Adactus property at market value, which would cost it several million pounds, instead Adactus would hold an interest in its land which would be transferred to the Council’s lead developer partner or other developer at a later date for development for the value of the interest.

In the meantime the properties were gradually becoming empty. There were now complete terraces and links of terraces that were empty. They were increasingly the focus of antisocial behaviour and crime and there had been a spate of arson attacks on some of the vacant properties. It had therefore been proposed by the council and agreed by Adactus that they were prepared to enter into a licence agreement with the Council which would permit the council to demolish terraces and groups of properties owned in their entirety by the council and Adactus when they became vacant.

Because of the restriction on resources it was unlikely that much demolition in phase 2 and 3 of the Klondyke would be achieved in the current financial year but with the licence in place vacant blocks could be demolished swiftly as resources became available. The conclusion was that entering into a licence agreement with Adactus would enable the Council quickly to demolish property in the Klondyke area as resources became available, thus reducing the risk of crime and antisocial behaviour related to vacant properties and reducing security costs for the Council and Adactus.

In a letter dated 24 October 2011 the Council wrote to Ms Lewis, who in due course took the decision under challenge in these proceedings on behalf of the Secretary of State, setting out its position in response to the Claimant’s letter dated 8 September 2011 seeking a screening direction in respect of Klondyke phase 2 and 3. The letter stated that the area known locally as the Klondyke estate was part of the Council’s Housing Market Renewal Initiative. In 2003 it had been identified as suffering from acute housing market failure and redevelopment had been adopted as the preferred option to arrest the decline of the area. It identified the properties within phases 2 and 3 of the Klondyke re-development area including the Chapel.

The letter stated that the only demolition carried out recently within that area had been to four properties in Springwell Road which had been identified as being in poor structural condition and in anticipation of demolition being required in order to make them safe a Prior Notification Application had been determined on 24 March 2011 without screening on the basis that at that time screening for EIA had not been required for demolition projects relating to demolition of dwelling houses. (In March 2011 the Court of Appeal ruled that demolition was within the scope of the EIA Directive-see R(SAVE Briton’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA CIV 334; [2011] CMLR 48).

The letter stated that there were no current outline planning applications pending or permissions in place. It stated that the condition of a number of properties within the area of phases 2 and 3 had been monitored closely. In early September it had become apparent that their condition had deteriorated to the point where their structural integrity was in doubt and collapse was feared and therefore they were quickly demolished to make them safe.

It was stated that a Prior Notification Application for the demolition of 1 to 6 Springwell Court and the Chapel were being prepared but had not yet been submitted. It was not anticipated at that stage that further demolition would be carried out in phases 2 and 3 until early 2014, unless demolition was necessary before then in order to make structurally comprised properties safe. When demolition was carried out in phases 2 and 3 the letter stated it would be based upon a comprehensive method statement provided by the Council’s demolition contract. That would ensure that the impact of the wider environment was kept to an absolute minimum.

By a letter dated 28 October 2011 Ms Lewis, a senior planning manager, wrote to the Claimant on behalf of the Secretary of State in response to its request for a screening direction relating to the demolition of phases 2 and 3 of Klondyke. She stated that the Council’s letter dated 28 October 2011 clarified that there were at present no applications for prior approval being considered or approved and that it was unlikely that demolition would proceed before 2014. She further stated that that letter also indicated that the licence agreement which the Council held related only to permission from the property owner Adactus Housing to demolish without the need to purchase the properties.

Accordingly Ms Lewis stated that it would appear that in the absence of submission or preparation of an application for prior approval the Claimant’s request was premature, particularly given that there was no specific future identified use for the site.

Ms Lewis drew attention to the fact that the Council’s letter indicated that a prior approval application was likely to be made in the near future for the Chapel and for 1-6 Springwell Court on the Springwell Road. It was anticipated by the Council that an application would be made early in the New Year. Mr Forsdick on behalf of the Secretary of State submitted that it was necessarily implicit in that the Secretary of State was highlighting the possibility of small scale applications within phases 2 and 3 being regarded as separate and independent from the demolition of the wider whole.

There was no challenge by the claimant to the legality of the Secretary of State’s decision to decline to consider a screening direction in respect of Klondyke Phases 2 and 3 on the ground that it is was premature.

On 9 November 2011 the Council applied for prior notification of the proposed demolition of the Chapel. The applicant was described as the Council’s Housing Market Renewal Department. On the application form under the heading “Please state the reasons why the demolition needs to take place” the Council stated: “The building is part of the Housing Market Renewal Initiative.”

That application was subsequently withdrawn because of errors in the application and public notice and was followed by a second and effective prior notification application dated 7 December 2011. The details referred to above as regards the 9 November application were the same.

By a letter dated 13 December 2011 addressed to Ms Lewis the Claimant referred to the second prior approval application relating to the Chapel as well as a prior approval application relating to 51-57 Springwell Road. Given those recent applications and what was described as the Council’s history of “salami slicing” the project to demolish 4.7 hectares of Victorian housing in order to avoid EIA the Claimant asked the Secretary of State as a matter of urgency to reconsider his decision dated 28 October 2011 that a request for EIA screening was premature.

By a letter dated 19 December 2011 Ms Lewis on behalf of the Secretary of State wrote to the Claimant, in response to its letter dated 13 December 2011, requesting confirmation that the Claimant’s request for a screening direction was in relation to the demolition of the Chapel. The subject matter heading of the letter referred only to a screening request in relation to the Chapel and not in relation to Phases 2 and 3. She stated that the Secretary of State could consider such a request but that given that the Claimant’s original request did not relate to the proposed demolition of the Chapel she asked the Claimant to advise the Secretary of State how the proposal fell within schedule 2 of the Regulations and how the selection criteria in schedule 3 applied to the proposal.

She wrote that as advised in previous correspondence the Council in their response to the Claimant’s original request for a screening direction had indicated that the proposal for demolition of phases 2 and 3 of Klondyke would not be taking place until 2014 and that the intention given their financial arrangements was to apply for approval for and to demolish the whole site together rather than in small phases. The demolition of a small number of properties in Springwell Road was only carried out due to their dangerous conditions. Mr Forsdick pointed out that such an application would automatically attract EIA screening because the area in phases 2 and 3 at 4.7 hectares significantly exceeded the 0.5 hectares threshold at which screening was mandatory. That he submitted was inconsistent with an attempt on the part of the Council to avoid EIA screening in respect of phases 2 and 3 by salami slicing.

By a letter dated 20 December 2011 the Claimant responded to Ms Lewis. She stated that for the avoidance of doubt the Chapel “does now form part of her screening direction request.” A plan was attached showing the phase 2-3 site from which it was said that it could be seen that the Chapel was “to all intents and purposes” within the clearance area of phase 2-3, as was the Springwell Court as it was said was accepted by the Council in its letter of 24 October 2011. The letter stated:

“You refer in your letter that the reason stated by the Council for the demolition of Nos 51-57 Springwell Road was that the properties were unsafe. However, the reason given for demolition in the prior approval application is that the properties form “part of the housing market renewal initiative”. There is no mention in any of the prior approval applications of properties being unsafe or in need of demolition for structural reasons. It is worth pointing out that, were it genuinely the case that the buildings were unsafe, the Council would not need to submit a prior approval application for their demolition.

If the Council is serious about not commencing demolition in a piecemeal fashion, and contrary to the requirements of the Environmental Impact Assessment Directive, it will make a planning application for the demolition at the appropriate time to include the whole of the phase 2-3 site…

We therefore repeat our request that given the recent applications for prior approval referred to above, and the Council’s history of “salami slicing” the project to demolish 4.7 hectares of Victorian housing in order to avoid Environmental Impact Assessment, the Secretary of State please reconsider his decision as a matter of urgency.”

I note that in that letter the Claimant did not assert that demolition of the Chapel alone needed EIA or give any reasons why that was or might be so. Nor did it take issue with Ms Lewis’ statement in the letter dated 19 December 2011 that the proposal for demolition of phases 2 and 3 of Klondyke would not be taking place until 2014 and that the Council’s intention given their financial arrangements was to apply for approval for and to demolish the whole site together rather than in small phases. Nor did it respond to the request to advise the Secretary of State how the selection criteria in Schedule 3 applied to the proposal in relation to the Chapel or make any reference to paragraph 1(b) of Schedule 3 “the cumulation with other developments”.

Mr Forsdick stated in his skeleton argument that as a matter of fact 51-57 Springwell Road were demolished because they were unsafe. He further submitted that the Claimant was wrong in its understanding of the law as asserted in the letter in that the exception to the requirement for PNA in Part 31 of schedule 2 to the Town and County Planning (General Permitted Development) Order 1995 (“the GPDO”) only applies when demolition is urgently required in the interests of safety or health and the measures immediately necessary in such interests are the demolition of the building. In such circumstances there will not be time to apply for PNA. In such cases the developer must give retrospective justification for the demolition. However he said that this was not such a case in that nobody had claimed that the demolition was urgently necessary. That was not challenged by Mr Harwood and seems to me to be correct.

The Secretary of State responded by email asking whether a screening direction for the whole was sought, stating: “ I have not been provided with information on the wider scheme only the Chapel and am advised by the Council that they do not have information on the wider scheme given the timescales anticipated.”

The Claimant responded that the request was for a screening direction in respect of phase 2 and 3. “The fact that there are no specific planning applications for the site is exactly our point. This is in [sic] classic case of “salami slicing” in an attempt to avoid EIA” It was asserted that there was “plenty of evidence” of the Council’s long term plans.

On 22 December 2011 Ms Lewis wrote on behalf of the Secretary of State to the Council informing it that a further request for a screening direction date 13 December had been received from the Claimant. It was said that the request related to phases 2 and 3 and the Chapel. The Council was asked to provide all the relevant information on the prior approval application in particular anything that was not available on the public access site.

On 4 January 2012 an email was sent from the Council to Ms Lewis responding to her letter dated 22 December 2011 confirming that all of the information relating to the application relating to the Chapel was available on the Council’s website. She was also sent the link to the Klondyke Supplementary Planning Guidance and Developments Brief. The email concluded: “In particular the need for demolition and the number of dwellings concerned is comprehensively referenced throughout section 4 of the SPG”. That Mr Harwood pointed out can only have been a reference to the Market Housing Renewal Scheme. While that is probably correct it does not follow that it was therefore or thereby being admitted that the proposal demolition of the Chapel was part of Phase 2 and 3 since Ms Lewis’ letter to which this letter was a reply stated that a request for a screening direction in relation to both Phases 2 and 3 and the Chapel had been received and the reference may have been intended to be to the former rather than the latter.

On 6 January 2012 Ms Lewis on behalf of the Secretary of State wrote the letter to the Claimant which is challenged on this application for judicial review. The letter was headed “Request for screening direction by third party under regulation 4(8b) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 in relation to Klondyke demolition and redevelopment phases 2 and 3 the demolition of the Orrell Chapel Springwell Road (prior approval S/2100/1420) and completed demolition of 51-57 Springwell Road.”

Ms Lewis stated that the Secretary of State had reconsidered the Claimant’s request for a screening direction in relation to Klondyke phase 2 and 3 development and the development at the Chapel. He had concluded in relation to the wider phase 2 and 3 development that there had been no change of circumstances which led to a different conclusion to that set out in the letter date 28 October 2011 where the decision was that presently the Claimant’s request was premature. However the concerns expressed by the Claimant were noted and the request to screen phases 2 and 3 demolition and redevelopment could be reconsidered at a future time.

In relation to the Chapel Ms Lewis wrote that that was currently the subject of a prior approval application for demolition (S/2100/1420). The proposal to demolish the Chapel building fell within the description at paragraph 10b of Schedule 2 but did not exceed the threshold of 0.5 hectares in column 2 of the table in Schedule 2 of the 2011 Regulations. Regulation 4(9) allowed for the Secretary of State to consider development of a description mentioned in column 1 in schedule 2 in spite of the fact that none of the conditions contained in subparagraphs column (a) and (b) were satisfied. Accordingly the Secretary of State had considered whether the proposed demolition of the Chapel was likely to have significant effects on the environment. In determining such effects he had taken into account the criteria for screening Schedule 2 development as set out in Schedule 3. Three categories of criteria were listed: characteristics of the development, location of the development and characteristics of the potential impact.

Under the heading “Secretary of State’s formal decision” Ms Lewis said that in exercise of the powers conferred on him by regulation 4(9) of the 2011 Regulation the Secretary of State directed that the proposed demolition of the Chapel was not EIA development within the meaning of the 2011 Regulations. Any permitted development rights which the proposal might enjoy under the GPDO were therefore unaffected.

Under the heading “Characteristics of the development” Ms Lewis stated that in coming to his decision the Secretary of State had noted that the proposal under consideration was the demolition of the Chapel building on a site of approximately 0.09 hectares. The proposal did not include the redevelopment of the site. There was no reference to criterion 1(b) “the cumulation with other development”, but neither was there reference to the criterion 1(c) – 1(f).

Under the heading “ Location of the development” Ms Lewis stated:

“The proposal is within a densely developed residential area of predominantly empty properties. To the North East of the site lies an area of playing field, park, cemetery and a school. The proposal is set within an area which is identified for clearance in a development brief and Supplementary Planning Guidance dated 2004 for the Klondyke and Canal Corridor Area. Phase 1 of the clearance is predominantly completed but no specific proposals for demolition or redevelopment have yet been prepared for phases 2 and 3. The site is not within a defined sensitive area and is not within 1 km of local or national nature conservation, landscape or historic environment designations. The church is not a listed building.”

Under the heading “The Characteristics of the potential impact” Ms Lewis wrote that the Secretary of State had considered potential environmental effects in relation to accidents, noise, dust, vibration with reference to surrounding usage and also the creation of waste (including hazardous waste) and use of energy. He noted the Demolition Method Statement including Site Safety Statement and the stated intention to recycle timber and brick and also the Report of Survey of Asbestos Materials and the requirement for the demolition to meet the relevant legislative requirements for Control of Asbestos Health and Safety. He considered that given the nature and scale of the proposal, the temporary nature of any disturbance and the nature of many of the surrounding properties, it was not likely to give rise to significant environmental effects in that regard.

Ms Lewis wrote that the Secretary of State noted that the proposal was not located in or within close proximity of any designation relating to nature conservation, landscape or the historical environment and that the building was not listed. The results of the Bat Potential Survey were noted along with the provisions of the Method Statement in relation to bats and the likely date of demolition was also noted in that regard. The site would be cleared and levelled and redeveloped at a future date and in the vicinity another site had already been cleared on Springwell Road within the wider Klondyke area other sites had been cleared and were being or were about to be redeveloped. (I was told that that was a reference to phase 1). Accordingly she said that it was not considered that the proposal was likely to give rise to significant environmental effects alone or in cumulation. The latter words echoed criterion 1(b) in Schedule 3 “the cumulation with other development”, albeit that criterion appears in Schedule 3 under the heading “Characteristics of development” and not under the heading “Characteristics of the potential impact”.

Ms Lewis wrote that overall the Secretary of State was not persuaded that the demolition of the Chapel when considered alone or cumulatively with demolition at Springwell Road or the wider Klondyke phase 1 demolition and planned redevelopment was likely to give rise to significant environmental effects. Having regard to the above direction the application for prior approval might therefore proceed without the submission of Environmental Statements. It was common ground that the reference to “planned redevelopment” did not include phases 2 and 3.

The reference to the Bat Potential Survey was I understood it a reference to a report prepared in October 2011 by Amec Environment Infrastructure Limited who had been commission by the Council to undertake a number of remediation projects in Bootle. I was told that that report was on the Council website and that the Secretary of State had it at the time of the 6 January 2012 decision.

The report stated that the remediation projects were part of a wider regeneration project being undertaken within the area and that “ as part of these works, a disused church [the Chapel] has been identified as requiring immediate demolition as it is derelict and presents a health and safety risk. The building has been identified as being potentially suitable to support roosting bats. Therefore Amec were commissioned to inspect the building to assess its suitability for roosting bats and to identify any further work required in advance of, or during, demolition.

The report stated that the Chapel had been subject to an external and internal inspection on 19 September 2011 by an Amec ecologist experienced in bat surveys. Under the heading “ building assessment” the report stated :

“The church is in a severely dilapidated state having been subject to numerous arson attacks. Internally the church has a strong smell of bird guano associated with pigeon droppings. The roof has largely collapsed as a result of the vandalism and is only partially intact. Photographs of the church are included in Appendix B.”

Attached to the report was a series of photographs at least some of which suggested a state of dilapidation.

Under the heading “Conclusions” the report stated that the church was likely to have limited (negligible to low) potential to support small numbers or roosting bats in spring/summer. The houses in the immediate vicinity provided much more suitable roosting opportunities for bats.

Under the heading “Recommendations” it was stated that :

“Although the derelict church is unlikely to be a bat roost, the presence of small numbers of bats cannot be ruled out. Therefore a precautionary approach to demolition is recommended. It is recommended that if the building is to be demolished prior to the end of October the roof tiles are removed carefully by hand wherever possible to avoid harming any bats that might be present. … if demolition work will be undertaken between November and March it is unlikely that roosting bats would be present and therefore the works could proceed without the need for removal of the tiles or ceiling by hand. In the unlikely event that a bat is found at any time during the works, the bat should be left in situ; the work should stop; and an ecologist should be consulted immediately and will provide advice on how to proceed. ”(emphasis added).

In other words there was no recommendation that the Chapel should not be demolished by reference to any considerations relating to bats.

Prior to reaching the decision, Ms Lewis carried out “EIA Analysis Screening part one” dated 4 January 2012. I was told that these documents were not sent to the Claimant together with the decision but were sent subsequently on 7 November 2012.

They included the following. The site address was identified as phase 2 and 3 Klondyke and the Chapel. The brief description of the development was demolition of the Chapel along with reconsideration of phase 2 and 3 demolition of 4.7 hectares of housing. The area of development was said to be 0.09 hectares in respect of the Chapel and over 4 hectares in respect of phase 2 and phase 3 Klondyke demolition.

Under EIA details in answer to the question whether the proposed development was Schedule 2 development as described in Column 1 of Schedule 2 of the EIA Regulations Ms Lewis wrote;

“The overall proposal for phases 2 and 3 of Klondyke redevelopment the Chapel[sic] would fall within schedule 2 in relation to 10b as the proposal would be in excess of 0.5 hectares. However the Secretary of State has already ruled that consideration of phases 2 and 3 is premature as there is no proposal as such to consider at this point and only the intention to redevelop is indicated by the action of the Council such as the preparation of a development brief and SPG for the area in 2004. It is the Secretary of State’s view that consideration of phases 2 and 3 remains premature as there is no proposal to assess but that a proposal does now exist in relation to the Chapel.”

In answer to the question “if yes, under which description of development in column one i.e. nos 1-13?” Was written 10b. It was said that development was not partly within or near a sensitive area as defined by Regulation 2 of the EIA Regulations. In answer to the question whether the applicable thresholds/criteria in Column 2 were exceeded/met Ms Lewis wrote;

“Under regulation 4(9) of Part 2 of the 2011 EIA Regulations the Secretary of State can issue a screening direction where the size of the development is below the threshold in column 2 of Schedule 2 to the regulation.”

In answer to the question “if yes, which applicable threshold/criteria?” she wrote “10b but not over 0.5 hectares as the site is 0.09 of a hectare.”

Included in the EIA analysis and screening in which answers were inserted in boxes the following was stated. In answer to the question “Is this[ i.e. any physical changes in the locality caused by the project] likely to result in a significant effect?” Ms Lewis wrote “No. Not likely to give rise to significant environmental effects. The proposal is for removal of a single derelict building and is of a limited scale.”

In the context of the question whether the construction or operation of the project would use natural resources which were non renewable or in short supply the answer given was “No. Not likely to give rise to significant environmental effects. The proposal is limited in scale.”

In the context of the question whether the project was in a location where it was likely to be highly visible to many people Ms Lewis wrote that it was not likely to give rise to significant environmental effects due to the temporary nature of the visual disturbance. The building was currently derelict and although the proposal would lead to loss of a building and a replacement by a flattened site it was not considered, given the scale of the demolition proposal that, that would give rise to significant effects particularly as the proposal fell outside any landscape or conservation designation and would enable views through from Springwell Road to the park area.

In answer to the question whether there were any plans for future land uses on or around the location which could be affected by the project Ms Lewis wrote;

“Unlikely. The proposal will facilitate the eventual redevelopment of the area for housing as set out in the Klondyke Development Brief and Supplementary Planning Guidance. However as noted above in EIA details B there is not as yet a proposal for the redevelopment and demolition of the 4.7 hectares of housing around the current proposal. The demolition of this and other buildings in the vicinity would facilitate the redevelopment of the wider site.”

In answer to the question whether that was likely to result in a significant effect Ms Lewis wrote;

“No. Not likely to give rise to significant environmental effects given that the proposal would facilitate future land use on the site”.

Mr Harwood relied on the statement that the demolition of the Chapel would facilitate the redevelopment of the wider site as evidence of the Secretary of State accepting a link between the demolition of the Chapel and the redevelopment of Phases 2 and 3. In his submission it was an error of law on the part of the Secretary of State to conclude that the absence of a proposal in the form of a pre-notification application relieved him of the duty to consider whether the demolition of the Chapel would have significant environmental effects together with the question whether Phases 2 and 3 would have such significant effects.

In answer to the question whether there were any other factors which should be considered, such as consequential development which could lead to environmental effects or the potential for cumulative impacts with other existing or planned activities in the locality Ms Lewis wrote;

“Unlikely. As noted in 26 it is the Council’s intention for the Klondyke area to be the subject of clearance and redevelopment as set out in the [SPG] Development Brief (2004) for the Area. The phase 1 clearance and redevelopment has already progressed and is covered by a series of planning consents. In the phase 2 and 3 area which is the subject of the request there have been a small number of properties which have been the subject of clearance at 51-57 Springwell Road (4 properties). The properties concerned were considered to be dangerous and were demolished in 2011. There is the potential for cumulative visual impact from the proposal and other cleared areas within the Klondyke area. The existing cleared sites are separated from the proposal and Springwell Road site by Klondyke phase 2 housing area which has not been cleared. The proposal is set next to an area of open land. It is not considered given that there is no proposal to redevelop the site that there is the potential cumulative impact related to the future use of the cleared sites at Springwell Road and Orrell Chapel when taking in accumulation with the schemes already approved for redevelopment as the future use of the proposal site, although likely to be residential use, is not as yet known.”

In answer to the question whether that was likely to result in a significant effect Ms Lewis wrote;

“No. Not likely to give rise to significant environmental effects. In considering the cumulative impacts the current proposal has been considered along with limited demolition of properties which has already taken place at Springwell Road. It is not considered given the limited scale of the proposals at the Chapel and Springwell Road and its separation from the earlier phases of the Klondyke and Canal Corridor redevelopment by streets of remaining housing, will give rise to significant environmental effects in cumulation with the clearance and redevelopment in the Klondyke phases 1, Penpoll Leeds Liverpool Canal. It should be noted that once proposals are available for elements or the whole of phase 2 and 3 the Secretary of State can consider a screening direction regardless of whether the proposals meet the threshold of 0.5 hectares. ”

Following the decision of 6 January 2012 there was a delegated report by Council officers on the second application dated 7 December 2011 which referred to the application site of the Chapel as being situated in an area allocated as Primary Residential Area on the Council’s Adopted Unitary Development Plan and referred also under the heading “policy” to policy H7 to which I have referred above. Mr Harwood on behalf of the Claimant submitted that this showed that the proposed demolition of the Chapel formed part of a wider housing regeneration programme. The report stated that there was no detailed planning permission for a scheme covering that part of the area at present. It was the absence of an approved scheme that prompted the need for the application.

Reference was also made to the fact that the site of the Chapel was of 0.09 hectares in area so that there was no requirement for screening under the 1999 Regulations, the threshold for assessment being 0.5 hectares. Nonetheless it was stated that it was open to the Secretary of State to issue a screening direction and reference was made to the fact that the Claimant had made a screening request to him on 21 December 2011 which would have encompassed phases 2/3 of the Klondyke estate and the Chapel. However as the request had been refused there was no basis for EIA on that occasion. I was told by Mr Forsdick that the Secretary of State did not see this report before the relevant decision in issue in this case.

The Council approved the prior notification procedure by notice dated 10 January 2012 which also referred to Policy H7.

There was before the court a witness statement of Mr Alan Lunt, the Council’s director of Built Environment who said that since 2006 he had responsibility for Housing Market Renewal activity in Sefton.

Mr Lunt stated that the SPG adopted in July 2004 outlined plans to redevelop the Klondyke housing estate and to develop the adjacent canal side industrial sites with new modern housing.

Under the heading “Progress to date” he stated that new housing construction on three contaminated former industrial canal side sites had now been completed and new housing on a further contaminated former industrial site was currently under construction. The re-development of the existing Klondyke housing estate comprised three phases. Phase 1 had been fully assembled and construction of new properties would commence in November 2012. Phases 2 and 3 comprised 468 existing properties and only 8 households remained.

In October 2010 following the Comprehensive Spending Review funding for the programme via the Housing Market Renewal Fund ended only 7 years into what was originally intended to be a 15 year programme. In order to complete the programme as planned replacement funding was subsequently secured from the Council’s own resources and the Government’s HMR Transition Fund. That had provided the resources necessary to complete the re-development proposals.

As part of the Empty Homes Review the Council had been in discussion with the Government regarding the redevelopment proposals for the Klondyke estate. The Government wished to limit demolition to those areas where it was absolutely necessary and it was the Council’s view that the Klondyke estate was such an area. However as at the date of his witness statement no prior approval had been gained to demolish the phases 2 and 3 area of the estate. The Council were currently in discussions with its developer partner for the Klondyke area and an application for planning consent to re-develop phases 2 and 3 in line with adopted planning policy was anticipated in late 2012/early 2013. On 18 September 2012 the Claimant had been successful in its application for permission to bring judicial review proceedings into the allocation of the HMR Transition Fund. The claimant was seeking repayment of the funds allocated to 13 local authorities by the Government and to recall diversion of that funding into development projects.

Mr Lunt gave the following narrative account of events relating to the Chapel. Despite the area being inspected by English Heritage the building, which was constructed sometime between 1894 and 1908, was not listed and held no other heritage status. The SPG plan clearly showed that the Chapel was not initially included in any demolition plans for the area. However there were concerns about the long term viability of the Chapel and as it would be some time before detailed plans would be finalised for that part of the estate the final decision about the building was reserved.

In 2006 a grant of funding was provided by Breathe+, the Council’s strategic regeneration partner in the area, to the Presbyterian Church of Wales in order to upgrade facilities in the building. In late 2007 the Presbyterian Church of Wales took the decision to sell the building. On 1 May 2008 it was sold at auction to K and K Estates Limited, a property development company from London. Shortly after purchasing the building the new owners discovered that the title to the building contained connexional covenants which prevented K and K Estates Limited from developing the site and the building was left empty and unused.

The Council tried to negotiate a resolution to the situation and during the course of 2009 held discussions with local community and faith groups who might be interested in occupying the Chapel. Discussions were held with another church and an established youth organisation both of whom were seeking alternative premises in the area. However those discussions came to nothing and the building remained empty.

During the period when the building was owned by K and K Estates Limited it was subject to a number of arson attacks. Merseyside Fire and Rescue attended fires there on 28 August 2008, 1 January 2010, 21 April 2010, 7 May 2010 and 20 May 2010. In the latter incident the building was extensively damaged by fire. It resulted in the evacuation of nearby residents because of fears that the fire would spread to nearby properties. In that incident the roof structure of the main building and rear hall was extensively damaged resulting in the loss of the roof covering and irreparable damage to roof timbers which were not capable of re-use. The suspended wooden floor of the main building and rear hall was also damaged beyond repair and was now incapable of re-use. The internal decoration and the fixtures and fittings were badly damaged and would have to be renewed if the building was brought back into use. The only area of the building to escape extensive damage in the fire was a small room housed in the front turret.

Despite being secured following the fire the building was broken into again on 28 May 2010 and 16 July 2010 and in each case the Council’s building control section instructed the owners to carry out works in order to secure it.

On 5 November 2010 while the building was still owned by K and K Estates Limited the Council’s deputy building control manager visited the Chapel following reports that it was dangerous. His visit revealed that the building was indeed immediately dangerous and, acting under emergency powers under section 78 of the Building Act 1984, contractors were instructed to remove loose slates, re-secure the 3 window openings and remove the loose section of guttering. Before instructing the work to be carried out he telephoned the owners to explain the exact nature of the issues and to enquire whether they were in a position to rectify them immediately. As the owner was not in such a position the works were carried out in default.

On 7 February 2011 a Council Inspector again found a section of the roof structure to be dangerous. Contractors were instructed to carry out the necessary remedial works and the owner of the building was informed about the Council’s actions.

Under the heading “The Rationale for Demolition” Mr Lunt stated that it was not intended to develop the land around the Chapel once existing housing had been demolished as the area was intended to be public open space. With no resources to restore the badly damaged building and no long term use or occupier identified for it the Council decided that the best course of action was to purchase the building and apply to demolish it and ultimately incorporate the site in to the extended Public Open Space. The Council acquired the remains of the building on 17 March 2011.

Despite being secured by the Council following the purchase in March 2011 the building was again broken into on 24 August 2011 and again on 8 December 2011. After each incident the Council undertook works to re-secure the building.

The Chapel had been seriously damaged by fire and its structure had been severely compromised making it difficult and expensive to secure. It was relatively isolated as it was bounded on one side by open space which was a focus for antisocial behaviour in the area and on the other sides by empty properties. It was thus particularly vulnerable to break ins and arson attacks because there was little natural surveillance.

On 9 December 2011 an application for prior approval to demolish the Chapel was submitted.

In order to remove the risk and blight posed by the damaged Chapel the Council took the decision, by way of a signed Chief Officer Report dated 13 January 2012 to pursue the demolition of the building. That decision had nothing whatsoever to do with avoiding the need to carry out an EIA. In fact following the decision taken by the church elders that the building was surplus to requirements the Council looked at options to find a long term use for it and held discussions with local community groups that were looking for a facility in the area. Unfortunately nothing came of those discussions and the Welsh Presbyterians sold the building at auction to private individuals who could not deliver development and who failed to secure the use of the building as a community facility. It was while the building was owned by that new owner that it was first damaged by fire. Faced with a badly damaged building in a regeneration area which was purchased by a developer who could not make an alternative scheme work and with no available funding or identified long term use it was decided to pursue demolition. It was the Council’s view that given its type size and condition as well as its location it was not economically viable to refurbish the building and bring back in to use. To date no organisation had submitted to the Council a business plan setting out how it could be viably refurbished.

The Claimant issued a summons applying for permission to cross examine Mr Lunt on his witness statement but in the event the application was not proceeded with.

In response to Mr Lunt’s witness statement Ms Juliet Edgar, a community development volunteer, served a second witness statement dated 8 November 2012 in which, among other things, she said that due to the emptying of the homes in the area by the Council MBCHMRI programme from September 2003 through a so called “voluntary acquisition” and decanting process instigated by Riverside Housing from September 2003 the congregation of the Chapel diminished so that it held its last service on 29 March 2008. She said that she took a photograph of the Chapel on 31 March 2011 about two weeks after the Council had purchased it which she exhibited in her witness statement. She said there was no security whatsoever for the Chapel. The photograph showed one side of the Chapel with about a third of its roof tiles missing.

In response to Mr Lunt’s statement that to date no organisation had submitted to the Council a business plan setting out how it could be viably refurbished, she stated that the Maritime Community Development Agency (MCDA) had submitted a funding application to the DCLG-Empty Homes Community Fund Programme on 17 April 2012 to refurbish and remodel the homes and buildings along Springwell Road and the small streets off it which included the Chapel and Community hall. The application was for total grant of sum £5.2 million to create 90 homes and community facilities. She cited the DCLG assessors who she said praised the application and said;

“I do not feel able to recommend this project for funding in its current form….the local authority refuses to discuss the project and intends to demolish the identified properties as part of an on-going programme. They have yet to agree the low purchase prices with the current owners of the identified properties. The registered social landlord working in the area and supporting the lead organisation in undertaking the project believe the project is not economically viable. If the project had more local and official support, the cost of the rehabilitation would be offering value for money, but as it is, the refusal of the local authority to even engage in discussions about this project and for a sympathetic partner to question its deliverability means the project would be unlikely to succeed”.

She stated that through establishing Little Klondyke Community Land Trust MCDA would have been eligible to gain grant funding of some £5.2million but for the lack of support of the Council and its partner Adactus Housing who had agreed a licence to demolish with the Council.

The Council’s Regeneration Housing Cabinet Member organised the carrying out of the demolition of the Chapel on 13 January 2012. The report to the member was entitled “HMRI Demolition Programme 1B, demolition of Springwell church”.

Under the heading “Background” it was stated “the HMRI Regeneration Programme makes provision for the phased demolition and site clearance in the Bootle area known as the Klondyke. Tenders have been sought and approved by the phase 1b area and subsequently awarded to the Beech Group Demolition Company. The HMRI programme manager has requested that an additional piece of urgent demolition is undertaken (identified above) using negotiated rates as tendered in the 1b contracts.”

On 27 January 2012 a pre-action protocol letter was sent to the Secretary of State and Council after demolition works had started to get underway. On 30 January 2012 the Council agreed not to continue demolition and to secure the building pending the resolution of these proposed proceedings.

By virtue of Article 3(1) and Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (“GPDO”), permission for demolition of buildings is granted as long as the conditions in A2 are met. Article 3(1) provides that:

“Subject to the provisions of this Order… planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.”

Class A of Part 31 describes “any building operation consisting of the demolition of a building” as “permitted development”.

A2 of Part 31 provides that development is permitted by Class A subject to the following conditions:

“(a)

where demolition is urgently necessary in the interests of safety or health and the measures immediately necessary in such interests are the demolition of the building the developer shall, as soon as reasonably practicable, give the local planning authority a written justification of the demolition;

(b)

where the demolition does not fall in sub-paragraph (a) and is not excluded demolition -

(i)

the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site;

(ii)

the application shall be accompanied by a written description of the proposed development…

(v)

the development shall not be begun before the occurrence of one of the following -

(aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required

(bb) where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such prior approval is required, the giving of such approval…

(vi)

the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out-

(aa) where prior approval is required, in accordance with the details approved;

(bb) where prior approval is not required, in accordance with the details submitted with the application…”

However permitted development rights under the GPDO do not apply if the Secretary of State directs that the development is EIA development, in which event paragraph 3.11 (b) provides that the development shall be treated, for the purposes of Paragraph (10) thereof, as development which is not permitted by the GPDO.

Paragraph (10) of the GPDO provides inter alia that Schedule 2 development within the meaning of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 EIA Regulations”) is not permitted by the GPDO unless the local planning authority has adopted a screening opinion that the development is not EIA Development or the Secretary of State has made a screening direction to that effect.

Paragraph (11) of the GPDO provides inter alia that where the Secretary of State has directed that development is EIA Development that development shall be treated for the purposes of Paragraph (10) as development which is not permitted by the GPDO.

It was common ground that the demolition of the Chapel would be an urban development project falling within both the Environmental Impact Assessment Directive 2011/92/EU (“the Directive”) and the 2011 EIA Regulations.

Article 1 of the Directive provides inter alia that:

Article 2 (1) of the Directive provides that:

“Member states shall 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 regards to their effects. Those projects are defined in Article 4.”

Article 4(1) provides that:

Article 4(2) provides that:

“… for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

a)

a case-by-case examination; or

b)

thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).”

Article 4 (3) provides that:

“When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.”

Among the projects listed in Annex II of the Directive are “urban development projects…” (See paragraph 10(b)).

Paragraph 1(b) of Annex III provides that the characteristics of projects must be considered having regard in particular to the cumulation with other projects.

Regulation 2 (1) of the 2011 Regulations defines “EIA Development” as development which is either “Schedule 1 development or Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.” It defines Schedule 2 development as “development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where -

It defines “Screening direction” as a direction made by the Secretary of State as to whether development is EIA Development”

Paragraph 10(b) of Schedule 2 of the 2011 Regulations lists in the first column “urban development projects…” and in the second column “the area of the development exceeds 0.5 hectare”.

Regulation 4(3) of the 2011 Regulations provides that a direction of the Secretary of State shall determine for the purposes of the Regulations whether the development is or is not EIA development. Regulation 4(9) provides:

“The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of “Schedule 2 Development” is satisfied in relation to that development.”

Regulation 4(8) provides that:

(8)

the Secretary of State may make a screening direction either -

(a)

of the Secretary of State’s own volition; or

(b)

if requested to do so in writing by any person. ”

Paragraph 1(b) of Schedule 3 provides that:

“The characteristics of development must be considered having regard in particular to -

b)

The cumulation with other developments.”

In this case the Secretary of State made a screening direction under Regulation 4(9) which allows him to direct that particular development is an EIA development even if it is below the size threshold in Schedule 2 and is not in a sensitive area. The question for the Secretary of State was whether the project (the language used by Article 2.1 of the Directive) or the development (the language used by) Regulation 2(1) of the 2011 Regulations) was “likely to have significant effects on the environment by virtue of factors such as its nature, size or location.” He was required by Article 4(3) and Annex III of the Directive and, as it seems to me, by Regulation 4(6) and Schedule 3 of the 2011 Regulations to take in to account such of the selection criteria set out respectively in Annex III and Schedule 3 as were relevant to the project/development. Paragraph 1(b) of Annex III provides that “the characteristics of projects must be considered having regard, in particular, to the cumulation with other projects.” Paragraph 1(b) of Schedule 3 is in identical form such that in place of the word “projects” is the word “development”. Further his screening direction had to be accompanied by a written statement giving clearly and precisely the full reasons for his conclusion. ( See Regulation 4(7))

The Secretary of State failed to consider the demolition as part of the Phase two and three demolition and redevelopment proposals in Klondyke area and so failed to have regard to the impact of the project or failed to consider the cumulative effects of the demolition.

It is common ground that in ruling in the screening direction that the proposed demolition of the Chapel was not EIA Development, Ms Lewis on behalf of the Secretary of State considered the proposed demolition of the Chapel on its own and did not consider it as part of a larger project comprising Phases two and three and did not have regard to the cumulative effects if any of the proposed demolition of the Chapel taken together with any future effects of Phases two and/or three. The question is whether that was unlawful.

Mr Harwood submitted that there are two circumstances in which the environmental effects to be considered may be more than the effects of the proposal in the particular application which is being screened. That is either because the application is part of a larger project, as in the ECJ judgments in Commission v Spain [2005]ENV.L.R.20, Ecologistas En Accion-CODA v Ayuntamiento de Madrid C-142/07 [P.T.S.R. 458] and Karnten v Kartner Andesregierung C-205/08 [2010] [ENV.L.R.15] or because it has a cumulative effect with other projects. It was common ground that EIA cannot be avoided by splitting up “the proposals” into a series of applications. There were he submitted two dangers: the first that EIA is avoided entirely, the second that EIA takes place so late in the process, when many elements have been approved, that environmental harm has taken place without proper assessment. It is not appropriate to allow elements of “the project” to proceed and then to carry out an assessment at a later stage encompassing the earlier acts of demolition. He drew attention in this regard to recital 2 of the Directive and in particular the last sentence thereof:

“Pursuant to Article 191 of the Treaty on the Functioning of the European Union, Union Policy on the environment is based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay. Effects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes.” (Emphasis added).

Mr Harwood submitted that the Secretary of State misunderstood the decision in R(Candlish) v Hastings Borough Council [2006]1P.C.R.18. In that case a developer had applied for planning permission for a new road as the first phase in a two phase residential and business development. The phase one application was below the threshold for EIA screening by the local planning authority. The Court held that the threshold was applied to the particular application and so the local authority could not require EIA. Davis J agreed with Simon Brown J in R v Swale Borough Council Exp Royal Society of Protection of Birds [1991]J.P.L39 who had said:

“The question whether the development is of a category described in either schedule must be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question whether “it would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location” should, in my judgment, be answered rather differently. The proposal should not then be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development. This approach appears to me appropriate on the language of the regulations, the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, developers could otherwise defeat the object of the Regulations by piecemeal development proposals.”

If screening took place the question whether there were likely to be significant effects had to be answered by considering any wider project - See Candlish at Paragraphs (68-71). Candlish was a case where the Secretary of State could have been asked to make a screening direction for the sub-threshold development (see paragraph 67.2) but was not asked to do so. In the present case the Secretary of State did make a screening direction and had to consider whether the demolition was part of a larger development.

R (Littlewood) v Bassetlaw District Counsel [2008] EWHC 1812(Admin), [200] Env LR 21 and Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321; [2012]Env.LR.22 concerned planning applications for stand-alone schemes (see Littlewoods at paragraph 33 and Bowen-West at paragraphs 14,24,33 and 36). Whilst further development proposals might be anticipated the planning application schemes were to be carried out alone. In Bowen-West EIA was being carried out of the planning application in any event. The issue was whether future proposals should be included in that EIA and the Court of Appeal distinguished screening cases such as Commission v Spain, Ecologistas and Swale. Laws LJ said at paragraphs 32 - 33:

“It is in this type of case, screening cases, that the courts have been concerned, energetically concerned, to put a stop to the device of using piecemeal applications as a means of excluding larger developments from the discipline of EIA. That approach can simply not be read across to a case which is not about screening at all, but rather about the appropriate scope of an EIA.

33.

At the heart of this case, it seems to me, is the proposition that the issues arising here are not comparable with those that arose in these screening decisions. In a case such as the present as I have indicated, we are dealing with what is quintessentially a matter of judgement…”

Mr Harwood submitted that as a matter of fact the proposed demolition of the Chapel was explicitly part of the redevelopment of Phases two and three. At the time of the screening direction on 6 January 2012 Ms Lewis who made the decision for the Secretary of State was aware of the following matters:

“(i)

The Council’s letter to the Secretary of State dated 24 October 2011 identified the Chapel as one of the “Properties within Phases two and three of the Klondyke re-development area” and so to be demolished:

(ii)

The applicant for prior notification was the Council’s Housing Market Renewal Department and the reason given for demolition was that “the building is part of the Housing Market Renewal Initiative.”

(iii)

The July 2004 SPG Plan showed the retention of the Chapel but that was obviously no longer the Council’s intention.

(iv)

In the November 2004 Development Brief the reference to the possibility that a further community building could include replacement provision for the two charities in the area implied that it was by then intended to demolish the Chapel.

(v)

The Council’s Cabernet Report dated 25 October 2010 stated that the Council was currently acquiring properties for demolition as and when residents were re-housed or when properties became vacant in most of the area known as Phases 2 and 3 although it was unlikely that most demolition in phases 2 and 3 would be achieved in the current financial year, with the licence in place vacant blocks could be demolished swiftly as resources became available.

(vi)

The HMR Klondyke Area Communities Facilities Study of October 2005 stated that the Chapel was located in Phase 3 of the development programme and that its future in the SPG was for eventual acquisition and demolition to make way for open space. As already mentioned the reference to the SPG stating that the Chapel’s future was for eventual demolition appears to have been incorrect.

(vii)

The HMR Transition Funding bid of July 2011 which was available to but not seen by Ms Lewis confirmed that the Council was carrying out a programme of demolishing Phases one, two and three”

Mr Harwood submitted that Ms Lewis would also have been able to find on the Council’s Website the November 2004 Development Brief showing the demolition of the Chapel on the Klondyke Pathfinder page, the 2005 Community Facilities Study recording the proposed demolition and inviting a rethink- this was also on the Klondyke Pathfinder page, and the first prior approval application which was in identical terms to the pending application.

The Secretary of State was also aware from the Council’s Housing Market Renewal Transitional Fund Bid dated July 2011 which he had approved in November 2011 that the Council proposed the demolition of all of the properties in the Klondyke Phases and the redevelopment of the site. That the proposed demolition of the Chapel was part of the wider HMR demolition and clearance was confirmed immediately following the screening direction by the prior approval delegated report and decision notice relying on housing and regeneration policy and the Cabinet Member Report.

The Screening direction, which included any reasoning on this issue, did not assess the evidence that the demolition of the Chapel was part of the “Phases two and three project” and the Housing Market Renewal Initiative. Consequently a material error of fact was made because the Chapel demolition was in fact part of a wider project encompassing the demolition and redevelopment of those phases and that wider project should have been screened in accordance with European and domestic case law. Alternatively if there was any room for a contrary view the Secretary of State failed to have regard to relevant considerations and was required to provide full reasons for such a view but did not do so.

Mr Harwood submitted that the Secretary of State was wrong to say that “the project” was for the Chapel alone when it was expressly part of the Housing Market Renewal Initiative and identified by the Council which was also the developer, as within Phases two and three.

Whether the demolition of the Chapel could take place irrespective of future proposals for the wider area was irrelevant when the demolition was part of a wider project. It would have been no answer in Ecologistas to say that a road could have been built as a stand alone scheme in Madrid when it was in fact part of a proposed ring road.

As to the detail of the future proposal the extent of demolition and the number of new houses were known to the Secretary of State, not least from the approved bid document. If more detailed is required to meet the requirements of EIA then that would be a consequence of EIA- outline planning permissions must now contain considerable detail of the scheme to comply with the EIA ragime. It would also be no answer to say that the effects of the demolition of the Chapel might be considered in an EIA of a later stage of demolition or redevelopment.

Mr Harwood submitted that Mr Lunt’s statement that by March 2011 the Council had decided to demolish the Chapel and incorporate the site into the public open space proposed when the housing was demolished showed that by that stage at the latest the demolition of the Chapel was part of the wider demolition project. The rationale for incorporating the Chapel in the wider demolition/open space proposals did not therefore affect whether it was part of the wider project.

Mr Harwood submitted that the Council’s assertion that the proposal to demolish the Chapel was due to its condition rather than as part of the strategy for the area was incredible. Further his witness statement was seriously misleading in the following respects. He failed to mention or deal with the documents which describe demolition of the Chapel as part of the HMR program - ie the Development Brief, the 24 October 2011 letter and the prior approval applications. He failed to mention the Community Facilities Report which contradicted his position. He failed to produce any documents supporting his rationale. As to his statement that the Chief Officer Report of 13 January 2012 was to pursue demolition “in order to remove the risk and blight posed by the damaged church”, Mr Lunt did not exhibit the report and it was only subsequently provided when the Claimant’s solicitors referred the Council to Part 31 of the CPR. That report did not in fact contain the claimed reason but instead referred to the HMR program of demolition and clearance. Mr Lunt claimed that the Council had discussions with community groups about the future of the Chapel but the Council had since said that it had no documents relating to that. He exhibited two plans dated October 2012 showing the Chapel and Springwell Court outside Phases two and Three. However those documents, prepared for the purposes of litigation, were not compatible with the October 2011 letter which included those properties in the Phases.

Mr Harwood submitted that the response to the Claimant’s Part 18 request for further information which was served as a result of the incompatibility of Mr Lunt’s evidence with the contempory documents contained unsubstantiated assertion which could not be accepted. It asserted that the Communities Facilities Study was wrong to believe the Chapel would be demolished. If that was correct the study proceeded under a major mistake as to the community facilities which would be retained. It was not credible that such an error would not have been corrected by Council officers before the report was accepted. Instead it was published by the Council on their website and it was reported to Cabinet. This alleged error was only raised seven years later. The Council was incapable of answering directly the question as whether the prior approval application forms were correct to say that the reason why the demolition needed to take place was that the Chapel was part of the Housing Market Renewal Initiative.

On behalf of the Secretary of State Mr Forsdick submitted that the facts in the present case are far removed from those in the two leading authorities on “salami slicing”, Comission v Spain and Ecologist. As “Salami slicing” he submitted is the term applied to the splitting up of projects into sub-projects with the effect of each part coming below the thresholds for EIA and therefore avoiding (whether deliberately or not) the need for EIA. In Commission v Spain a single long distance rail construction project was split into small “local” projects with the result that the section in question (and the project as a whole) was not subject to EIA [52] – [54]. In Ecologist as a single project for the upgrade of the Madrid ring road was split into 15 projects each with the result that the section in question (or the project as a whole) was not subject to EIA [25], [44] – [45]. In both cases it was held that that approach was impermissible under the Directive, constituting what is commonly called “salami slicing”. The true project was in fact the wider whole – the complete ring road or the long distance train line.

By contrast in this case Mr Forsdick submitted that as and when Phase 2 and 3 was brought forward there would be screening (and if appropriate EIA) of that.

He submitted that the legal principle applicable on the current facts is that at the screening stage (whether a schedule 2 project is likely to have significant effects on the environment) a project should not be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development: See R v Swale BC ex-parte RSBB [1991] JPL39. The question as to whether the development is an intrinsic part of any inevitably wider whole is one of fact and judgment for the decision maker. The fact that there may be or are likely to be wider proposals in the future course which could also cover the current proposal does not mean that the current proposal has to be treated as an integral part of an inevitably wider whole.

He submitted that there is a distinction to be made between projects which are an integral part of an inevitably more substantial development, in other words a single project being split into parts as in Commission v Spain and Ecologistas, and individual projects which are justified on their own merits and/or which would be pursued independently of some wider project even if the development (or here demolition) involved could at some future point also be part of a more comprehensive proposal. In the latter case he submitted that there is no “salami slicing” and no avoidance of the EIA regime. There is no inconsistency between a project being both a separate, independent and/or freestanding project now and also potentially at some future point part of a wider whole. Mr Forsdick submitted that the logic of the Claimant’s approach is that because this proposal could be part of a comprehensive application in the future it can only be treated as part of that wider whole now (even if the subject of a separate, small scale, independent application). That is not the law and is inconsistent with Swale, R (Ellson) v Greenwich LLBC [2006] EWHC 2379 (Admin) and a practical, purposive and common sense application of the legislation.

In Ellson a major re-development proposal was proposed. There was no planning permission for the re-development (it having been quashed) but the land owners intended to proceed with the demolition in any event and irrespective of the receipt of planning permission for the re-development. Mr Forsdick accepted that the legal position relating to demolition applicable at that time was different from that which now applies, but submitted that that difference was of no significance to the Court’s relevant reasoning. The argument put was that the demolition was an integral part of the future re-development and should not be permitted to go ahead until the final project had been subject to EIA [19]. Reliance was placed on Swale and Bund Naturschutz in Bayern B v Friestaat Bayern [1994] ECRI – 3717. The Court held that for reasons given by the developer at [25] the demolition was an independent act from the future re-development of the same site and, importantly for present purposes, therefore the Swale principle was not applicable. Permission to appeal was refused by the Court of Appeal on the same basis ([2006] EWCA Civ 1436).

Mr Forsdick also relied on what he submitted was the analogous approach in R (Candlish) v Hastings BC [2006] 1PCR18. He accepted that that was not a regulation 4(9) case and therefore fell within what he described as the first category in Swale but the approach (and the reasons for it) were of relevance. There a planning application was pursued for phase 1 of the development (road works) on an area of 0.5ha which, it was claimed, had no meaningful existence on its own, the sole rationale being to service future residential development contemplated in phase 2. There was no EIA of phase 1 even though phase 1 and 2 taken together would fall within schedule 2. The phase 1 development was expressly pursued “to serve” phase 2. Nonetheless the approach of not requiring EIA on the phase 1 application was lawful [72] following the reasoning in Swale and Bund Naturschutz at [69]. What one had to look at was the application itself and not a possible future application.

Mr Forsdick submitted that by analogy with Ellson where a demolition is pursued separately and independently from a possible future demolition of a wider area it is open to the decision maker to consider it as a separate project at the screening stage. Such an approach does not undermine the purposes of EIA or constitute “salami slicing” and is consistent with Swale. If and when proposals for the wider whole came forward permissions would have to be sought and EIA considered for that wider whole. That is what the Secretary of State concluded was the situation in this case.

Mr Forsdick submitted that in order to succeed the Claimant would have to show that it was not lawfully open to the Secretary of State on the facts available to him to treat the demolition of the Chapel as a separate proposal from the possible future demolition of the wider area. Development plans and SPDs/briefs often have wide ranging policy aspirations for re-development of large areas. To bring forward those aspirations will often require master-planning, large scale demolition and planning permission for major re-development. However the existence of those aspirations does not mean that in the meantime any small scale application within the relevant area is an integral part of an inevitably more substantial development even if it would be consistent with that wider whole if that wider whole were later to be pursued.

He submitted that the distinction between projects which are integral parts of inevitably more substantial developments and projects which are separate even if they may subsequently be part of a wider whole explains the decision in Ellson. Plainly the demolition in that case would facilitate possible future development of the site and plainly that future major re-development could not proceed without the demolition. It was thus a more extreme case than the present one. However the demolition was being pursued in advance of and independently of the wider re-development and it would happen irrespective of the wider proposals. The demolition did not satisfy the Swale “test” and be considered on its own merits.

Mr Forsdick submitted that there are good reasons for this distinction. First unless and until there are concrete proposals for the wider whole the screening stage (and subsequent EIA itself) cannot proceed on a satisfactory basis. The environmental effects of inchoate aspirations for possible later proposals cannot sensibly be assessed. In this case there were no proposals and no demolition method statement for the wider whole. He relied by analogy on the case of R (Littlewood) v Bassettlaw.

Second he submitted that it is not sensibly possible to screen something which is only an intention in a planning brief. Sites across the country are covered by development briefs and local planning authorities often have aspirations for comprehensive re-developments. It is not the law and is not practicable for individual applications within such sites to be treated as inevitably part of some wider inchoate whole contained in such a brief. Third if the existence of aspirations/briefs for a wider site meant that EIA was triggered for small scale developments within that site it would unjustifiably restrict the ability to bring forward such small scale developments. Fourth Bund Naturschutz demonstrates that the ECJ recognises the difficulties in defining an “entire project” where there are no applications for that entire project; see the relevant paragraphs quoted in Candlish at [42].

Mr Forsdick submitted that there is no case in the ECJ or the domestic courts where small scale independent projects within possible future major development sites have been made subject to EIA on the basis of the possible impacts of that future wider development.

He submitted that the Secretary of State’s conclusion that the application for a screening direction in respect of phases 2 and 3 was premature because there were no applications for prior approval in respect of those phases and that it was unlikely that demolition would proceed before 2014 was unimpeachable. It demonstrated that there was as yet no wider project to be considered.

As to the Secretary of State’s description of the proposal for the demolition of the Chapel as being “for the removal of a single derelict building and ... of a limited scale” he submitted that that was a correct characterisation of the project on the documents available to the Secretary of State or at least was a characterisation which was open to him on the facts before him. He relied in this context on the references in the AMEC Bat report, which was on the Council website and which the Secretary of State had at the time of the 6 January 2012 decision as well as the photographs in that report of the state of the Chapel. “It is derelict and presents a health and safety risk” … “severely dilapidated state, having been subject to numerous arson attacks…The roof has largely collapsed as a result of vandalism and is only partially intact.” This he submitted was consistent with the position of the Council as communicated to the Secretary of State in the letter dated 24 October 2011, namely that the Council had stand alone proposals which would be pursued pending comprehensive proposals coming forward. The demolition of the Chapel was one of those small scale demolitions being pursued by the Council for site specific reasons independently of future comprehensive demolition and re-development proposals in phases 2 and 3. The facts were confirmed by Mr Lunt’s witness statement.

In the light of those facts Mr Forsdick submitted that the Council’s purpose of demolishing the Chapel was self evidently not to salami slice in order to avoid EIA. Nor was that its effect because screening of the comprehensive scheme would occur when a comprehensive proposal was made. The fact that once a comprehensive application was pursued it would be screened and if appropriate subject to EIA made this a different situation to those where single projects have been split into a number of separate projects with the effect of avoiding EIA. There was no evidence to support the Claimant’s concern that the Council was intent on achieving complete demolition without subjecting the whole to EIA by submitting small ad hoc applications over time ultimately covering the whole site. That was both implausible and contrary to the expressed position of the Council namely that they intended to pursue a comprehensive application with a comprehensive demolition method statement in 2014.

There had been no challenge by the Claimant to the Secretary of State’s conclusion that it was premature to issue a screening direction in respect of phases 2 and 3. The fact that the Secretary of State proceeded on the basis that as and when there were proposals for phases 2 and 3 screening would be carried out was inconsistent with the intent or consequence of the decision being avoidance of EIA for phases 2 and 3.

This was not a case in which prior notice applications were being granted a street or a block at a time without site or building specific reasons as part of a rolling programme of demolition pursuant to a comprehensive scheme. If that had been the case the facts would be analogous to the salami slicing cases.

Mr Forsdick accepted that the Council had identified the Chapel as within phases 2 and 3 in its letter of 24 October 2011 even though it was not so shown on figure 3. But that did not mean that it could not also be a separate and independent proposal in its own right before the comprehensive proposals for phases 2 and 3 were formulated. He further accepted that the reason given to the Council for the demolition was that it was part of the HMRI however there was no statutory requirement for a reason to be given on the prior notice application and in any event the question for the Secretary of State was whether on the facts before him it was appropriate to consider the proposed demolition of the Chapel at the time of the decision as an integral part of phases 2 and 3 rather than on its own. The Secretary of State was entitled to consider that it was not an integral part of phases 2 and 3 because there were no proposals or applications relating to phases 2 and 3 at the time of the decision. The Secretary of State had no obligation to trawl through the website of the Council to find further documents. Ms Lewis had been referred to the application documents by the Council and had asked the Claimant to set out its reasoning for its position. It was no part of her role to search for documents which were not presented to her by the parties. The legality of the Secretary of State’s decision is to be assessed by reference to the documents and information available to him and not by reference to subsequent information or subsequent arguments.

As to Mr Lunt’s evidence although the Secretary of State’s defence to the claim for judicial review did not depend on it, the passages in his witness statement describing the state of the Chapel and the reason for pursuing its demolition at that stage were consistent with the information available to the Secretary of State at the time he made the decision.

In response Mr Harwood pointed out that the Bat Survey report relied on by Mr Forsdick described the proposed demolition of the Chapel as part of the wider regeneration project being undertaken within the area. As to the Council’s letter dated 24 October 2011 it included the Chapel in phases 2 and 3 and accepted that the proposed demolition of the Chapel was demolition within phases 2 and 3 which might be brought forward earlier than other demolition in phases 2 and 3.

As to Mr Lunt’s first witness statement Mr Harwood relied on the fact that although it recorded damage done to the Chapel by arson it did not say that the building could not be restored. The fact that he said that the Council had acquired the Chapel to demolish it and incorporate it into the proposed open space was effectively a concession that it was part of the HMR programme. The empty properties referred to by Mr Lunt which bounded the Chapel on one side were because of the HMR Programme and in particular the Council’s purchase of homes for demolition in phases 2 and 3.

As to Mr Lunt’s assertion that the Council decided to pursue demolition of the Chapel by way of the Chief Officer Report date 13 January 2012 in order to remove the risk and blight posed by the damaged church, Mr Harwood pointed out that the report was not available to the Secretary of State when the decision was made but in any event submitted that it confirmed that the demolition was part of the HMRI Programme. It was headed “HMRI Demolition Programme 1B Demolition of Springwell Church”. It explained the background as being that that programme made provision for the phased demolition and site clearance in Klondyke. It then explained that the HMRI Programme manager had requested an additional piece of urgent demolition to be undertaken by the contractors carrying out the Phase 1b demolition.

He submitted that all the Council documents from November 2004 onwards which referred to the Chapel did so on the basis that it was proposed to be demolished as part of the HMRI Programme. None of the material supported the Secretary of State’s present assertion that the demolition was a separate and independent proposal. There was no evidence that demolition would have been proposed if the site had not been included in the HMRI Programme. Indeed it was unlikely that the Chapel would have got in to the condition it was in if the area was not being vacated for demolition and the Chapel had been acquired for that purpose. The timing of the demolition might have been brought forward because of its condition but the demolition was still part of the wider programme.

Mr Harwood submitted that the screening direction and the EIA Analysis and Screening failed to address whether the proposed demolition of the Chapel was part of the HMRI Programme or as now claimed a separate independent act. Whether a screening direction should be made over the entirety of phases 2 and 3 in advance of application for their demolition was a separate matter from the need lawfully to screen the application for the demolition of the Chapel. The latter required the Secretary of State to consider whether it was part of a wider project, particularly as that issue had been raised by the Claimant.

The Secretary of State’s decision therefore fell in to error in the following ways. First he failed to have regard to material considerations, failing to deal with the evidence in the documents relied on by the Claimant that the proposed Chapel demolition was part of the wider HMRI Programme. Second his failure to consider what was the project was in breach of the requirements of Schedule 3 paragraph 1(a) of the 2011 Regulations which provide that the characteristics of development must be considered having regard in particular to the size of the development. Third there was no evidence on which a conclusion could be reached that the demolition was an independent project. Fourth any conclusion that it was an independent project was irrational in light of the evidence and the conclusion in the screening analysis that demolition of the Chapel would facilitate the redevelopment of the area for housing in accordance with the Development Brief SPG. Fifth is was an error of law to disregard future demolition and redevelopment which had not yet been applied for. Sixth (and this overlapped with the second ground of challenge) neither the reasoned screening direction nor the EIA Analysis, which was not part of the statutory reasons, addressed this issue clearly precisely fully or at all. If the Secretary of State (or in reality Ms Lewis) considered those issues it was not possible to tell how he did so.

As to the identification of the project, Mr Harwood submitted that the interpretation of the Directive must be carried out purposefully. Its scope is wide and its purpose is broad. The objectives of the Directive can not be circumvented by the splitting of the projects or failure to take in to account the cumulative effect of several projects; see Karnten v Kartner Landesregierung C-205/08 [2010] ENV.LR.15. The Directive requires a precautionary approach and assessment at the earliest possible stage.

If an overall project is likely to have significant effects on the environment but initial applications are in respect of parts of that overall project only, then those initial applications must be screened and assessed on the basis of the whole project, including the parts which are not subject to a current development consent application.

If that does not take place there are two separate dangers. The first is that no EIA will be required at all because each application is considered in isolation. The second alternative danger is that if the screening exercise looks at the current application and its preceding applications there may come a point at which those amount to likely significant effects. But by that stage the earlier applications would have been approved and nothing could be done about them. On the facts of this case if the demolition and redevelopment of phases 2 and 3 including the Chapel would be likely to give rise to significant effects on the environment then a planning application and EIA would be required. If the screening decision only considered the application which was before the Secretary of State together with any earlier applications, the conclusion that EIA was required would be reached after demolition of the Chapel had been allowed. In that case even though a later EIA would consider the effect of demolishing the Chapel together with the balance of phases 2 and 3, it would be too late to affect whether the Chapel should be retained. The purpose of requiring EIA at the earliest possible stage before development is authorised would therefore be frustrated.

As to Swale Mr Harwood submitted that Simon Brown J’s observations were judicial dicta and ought not to be read with the precision of a statute. “Integral part of an inevitably more substantial development” is not language taken from legislation or guidance. It is not inevitable that a project which has planning permission will be carried out. The Directive takes a precautionary approach and looks at likely significant effects, “likely” in screening decisions meaning “may”. Something does not need to be certain or probable to need to be considered EIA.

In deciding whether “the project” is larger than what is being applied for the question is an objective one based on what the developer’s intentions are known to be or if the application is of little use on its own what is likely to follow. In this case the proposed demolition of the Chapel was part of a wider project comprising not only phases 2 and 3 but also phase 1 of the Housing Market Renewal Programme. That was the reason given by the developer (who in this case is also the Council) and that was consistent with every relevant document from November 2004 to January 2012. The Council’s policies included the demolition of the Chapel in the overall project, i.e the Development Brief. The Council was carrying out its own policy. In phases 2 and 3 that included the acquisition of properties, leaving them vacant, demolishing some buildings and ultimately intending to demolish all of them. The Council continued to pursue that policy for example in the 28 October 2010 cabinet report, the Transitional Fund bid and the 24 October 2011 letters. While there may be cases where future cases are so uncertain and the immediate application is being pursued for its own merits such that the future stages can be disregarded, this case was not one of them.

There was no basis for the submission that where a development is part of a larger project the rest of the project can be disregarded because the development could have been advanced independently. If it is part of a larger project then it must be screened as such. Neither the Directive nor the 2011 Regulations give any support to such an approach and there is no discernable principle underlying it. It would be contrary to the outcomes of Commission v Spain and Ecologistas.

Nor was there any basis for excluding the remainder of Phases 2 and 3 from consideration because of an asserted lack of details. If as was submitted to be the case the proposed demolition of the Chapel was explicitly part of the Housing Market Renewal Programme for phases 1, 2 and 3 the requirement to consider the effect of the project as whole could not be frustrated by a lack of detail as regards the later phases.

In any event he submitted that adequate detail as to phases 2 and 3 was known. The SPG set out the phases and the number of properties to be demolished and constructed with details provided both in the SPG and in the Development Brief. The Transitional Fund bid updated the figures for demolitions and new properties and the 24 October 2011 letter stated that the units would be houses rather than flats and provided details on some environmental issues.

If future parts of a project had to be worked up to the point where an application could be made for them as suggested by the Secretary of State, before they could be considered in a screening process the intention of the Directive to avoid the splitting of projects would be frustrated. On that approach the screening exercise could only in practice consider past and current applications because details of other elements not applied for would not be available. Consideration of the effects of the whole project would not arise until the details of the last stage had been provided. The ECJ cases relied on the overall project rather than what consents had been applied for by the time of the relevant decision. Thus Ecologistas for example concerned applications for five out of 15-projects. Further Simon Brown J’s dicta in Swale concerned a forward-looking exercise, the smaller development promoting the larger one.

As to Ellson, the case was argued on the basis that (a) demolition did not fall within the EIA Directive and (b) planning permission was not required, whether by permitted development rights or otherwise, for the demolition proposed. Consequently it was not possible to stop the land owner demolishing the building nor was it possible to require EIA of the decision to demolish because there was no consent required. Those assumptions were all shown to be wrong by the Court of Appeal in R(SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] 2CMLR48. The problem for the claimant in Ellson was that the land owner did not have to await the re-determination of the planning application for redevelopment to be able to demolish. The land owner also produced evidence that demolition would take place regardless of the redevelopment application in contrast to the instant case in which the proposal Chapel demolition was part of the wider programme.

Mr Harwood had two responses to the Secretary of States reliance on the statement in the Secretary of State’s letter date 19 December 2011 that the Council would apply for approval for and demolish the whole site together rather than in small phases. First that appeared to be a reference to the Council’s letter dated 24 October 2011 which did not propose a single application. It referred to a comprehensive method statement but not to a single application. It was silent on a single application and in fact envisaged some earlier demolition. Indeed the Secretary of State’s EIA Analysis referred to proposals for phases 2 and 3 coming forward for elements or the whole. Since the screening decision a demolition application had been made for part only of phase 2, namely nos 106, 110, 112 Monfar Road on 4 April 2012. Second the Secretary of State’s reliance on a future large scale application for phases 2 and 3 did not address the second danger flowing from a failure to consider the wider project of which a current application is a part until the later parts of the wider application are applied for. If, when there is an application for the demolition and/or development of the remainder of phases 2 and 3 an EIA is required it would be too late to save the Chapel and any other building which had been demolished in the meantime. For those buildings it would be EIA after rather than before the event.

The Secretary of State’s reason for considering the impact of the demolition with (a) the redevelopment of the Chapel site and (b) the previous clearance and future development of the Phase 1 are not likely to give rise to significant effects on neither adequate nor intelligible.

Mr Harwood submitted that although the screening direction referred to the previous demolition and the proposed redevelopment of that land it did not consider any of the environmental effects of that previous demolition or the proposed redevelopment. There was no explanation as to why there would not be significant effects in cumulation with the other demolition and the redevelopment.

The reasons given were not legally adequate. No explanation was given as to why the wider works identified did not give rise to significant effects taking together with the Chapel demolition. Those elements all contribute to the destruction of the historic environment, the generation of waste, the loss of embodied energy (the energy used to make the buildings), the affect on roosts for birds and bats, townscape and amenity impact and the social effects of dismantling communities.

In response Mr Forsdick on behalf of Secretary of State relied on the fact that the cumulative impacts with phase 1 were considered in box 27 of the Screening Document. No further cumulative effects with phase 1 were put forward by the Claimant in response to the Secretary of State’s invitation to explain why the proposed demolition of the Chapel should be subject to EIA. The nature of the development (small scale, removal of a building to slab level and not redevelopment) and its location (far removed from phase 1) made it difficult to see what further cumulative effects had to be considered to make the screening direction lawful.

Before reviewing the European and domestic authorities relied on by Mr Harwood and Mr Forsdick it is convenient to identify the question or questions which require to be answered in order to determine this application. One of the difficulties in this case is that the dicta and decisions relied on by one side or the other do not all arise in the same legal context. The legal contexts range from the definition of a project in the Directive, the definition of a Schedule 2 development in the Regulations (albeit in earlier versions of the 2011 Regulations), the extent of cumulative effects of a development which are required to be included in environmental statements by virtue of the Regulations (in an earlier version) as well as the question whether in considering whether a Schedule 2 development is EIA development because it would be likely to have significant effects on the environment a proposal can be considered in isolation or must also include consideration of whether a wider development of which it is a part would be likely to have such effects, and if the answer is yes what is the test for establishing whether a proposal is part of a wider development and is a decision on that matter challengeable only on Wednesbury grounds or is it a matter for the court.

The questions which arise on the first ground of challenge in this case are whether the Secretary of State acted unlawfully (1) in treating as the project and development in relation to which he was obliged to make a screening direction the proposed demolition of the Chapel rather than Phases 2 and 3 of which it formed a part and (2) in failing when deciding whether the proposed demolition of the Chapel was EIA development as defined by regulation 2(1) of the 2011 Regulations, to consider whether there were any cumulative effects of the proposed demolition taken together with phases 2 and 3 of the Klondyke development and if so to take them in to account when deciding whether the proposed demolition was likely to have significant effects on the environment by virtue of factors such as its nature, size or location.

As already mentioned it was common ground that the proposed demolition of the Chapel was an urban development project and thus was development of a description mentioned in Column one of the table in Schedule 2 of the 2011 Regulations but that it was not Schedule 2 development as defined by section 2(1) of the 2011 Regulations because no part of it was to be carried out in a sensitive area and, by virtue of occupying only 0.09 hectare it neither met nor exceeded the criterion in the corresponding part of Column two, namely that the area of the development exceeds 0.5 hectare.

By virtue of Regulation 4(9) of the 2011 Regulations the Secretary of State may direct that particular development of a description mentioned in Column one of the Schedule 2 is EIA development in spite of the fact that none of the conditions contained in – paragraphs (a) and (b) of the definition of “Schedule 2 development” in Regulation 2(1) is satisfied in relation to that development, that is to say that no part of the development is to be carried out in a sensitive area and no applicable threshold or criteria in the corresponding part of Column two are exceeded or met in relation to the developments. In other words he may direct that development is EIA development even though is it not Schedule 2 development.

Whether or not the development is Schedule 2 development, the question for the Secretary of State in deciding whether to direct that it is EIA development is the same, namely whether it is “likely to have significant effects on the environment by virtue of factors such as nature, size or location.” (See the definition of EIA development in Regulation 2(1).

A curiosity is that Regulation 4(6) provides that where the Secretary of State has to decide under the Regulations whether Schedule 2 development is EIA development he shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development. One of the selection criteria is set out in paragraph 1(b) of Schedule 3 namely “The characteristics of development must be considered having regard in particular to- the cumulation with other development.” Schedule 3 is headed “Selection criteria for screening Schedule 2 development” (emphasis added). There is no corresponding express obligation on the Secretary of State to have regard to such of the selection criteria set out in Schedule 3 as are relevant to the development when deciding, pursuant to the power conferred on him by Regulation (9), whether to direct that development which is not Schedule 2 development because for example it is less than 0.5 hectare, is EIA development.

The heading of Schedule 3 to which I have just referred and in particular the reference to Schedule 2 development might suggest that that omission is deliberate. On the other hand Article 4.2 of the Directive provides that when a case-by-case examination is carried out as well as when thresholds or criteria are set for the purpose of determining whether a project should be made subject to an EIA the relevant selection criteria set out in Annex III shall be taken into account. Those criteria include “the cumulation with other projects” (see paragraph 1(b) of Annex III). Thus the Directive requires the cumulation with other projects to be taken in to account by Member States in determining whether a project shall be made subject to an EIA when a case-by-case examination is carried out as well as when the determination is made through thresholds or criteria set by the Member States. Since the purpose of the 2011 Regulations is to implement the Directive it may be that the power under Regulation 4(9) to direct that development is EIA development should be construed as being subject to the same obligation to have regard in making the decision such of the selection criteria set out in Schedule 3 including in particular the cumulation with other development in paragraph 1(b) thereof as are relevant to the development.

It would on its face seem strange if a different and less demanding approach to deciding whether development is EIA development were required in the case of development which, even though falling within the description mentioned in Column 1 of the table of Schedule 2, does not meet the threshold or criterion in the corresponding part of Column 2 of that table, than in the case of development which does meet it. Moreover if the Secretary of State were not obliged in such a case to take into account such of the Schedule 3 criteria as are relevant to the development his enquiry would be open ended and less focused.

I incline to the view that when deciding under regulation 4(9) whether to direct that development which does not meet a threshold or criterion in column 2 of Schedule 2 is EIA development the Secretary of State is under an equivalent obligation to take into account such of the selection criteria set out in Schedule 3 as are relevant to the development.

In the Statement of Facts and Grounds two arguments were advanced. The first was that because the Council told the Secretary of State in the context of the EIA screening, in the letter dated 24 October 2011 that the Chapel was within Phases 2 and 3 and was part of the redevelopment proposals, the project which the Secretary of State was required to assess for screening purposes was not merely the demolition (with or without development) of the Chapel but also the demolition and redevelopment of Phases 2 and 3. The second was that the cumulative effect of the proposed demolition of the Chapel had to be considered with the proposed demolition and redevelopment of the rest of Phases 2 and 3. Those works were part of a whole exercise.

In Bowen-West Laws L.J. drew a distinction between the principles applicable to the question whether an EIA is required at all (“screening” positions) and those applicable to the appropriate scope of the EIA to be undertaken in a case, again such as the one with which the Court of Appeal was concerned in that case, where Environmental Statement admittedly falls to be made (“scoping” positions). He stated;

“I should next point up the fact that some of the principal authorities relied on by the appellant as demonstrating the breadth of the EIA provisions are not about the scope of the EIA to be undertaken in a case where, as here, an Environmental Statement admittedly falls to be made. Rather, they address the question whether an EIA is required at all. They are “screening” rather than “scoping” positions. This is so of Kraaijveld, Commission v Spain, Ecologistas and also [1991] 1P.L.R.6, to which reference was made in the argument. It is in this type of case, screening cases, that the courts have been concerned, energetically concerned, to put a stop to the device of using piecemeal applications as a means of excluding larger developments from the discipline of EIA. That approach can not simply be read across to a case which is not about screening at all, but rather about the appropriate scope of an EIA.”[32]

In considering these cases it is useful to bear in mind that, in the context of a decision whether a development is or not EIA development under Regulation 4(3) or 4(9) or whether a project is likely to have significant effects on the environment (Article 2(1)), the question whether a proposal is likely to have a significant effect on the environment can arise in either or both of two ways. First it can arise at the stage of identifying what is the “project” or “development” whose likely effects on the environment fall to be considered. Is it only the proposal for which planning consent is sought irrespective of which screening direction is sought or is it that proposal together with a wider project or development of which it is alleged to be a part? Second it may arise at the stage of considering whether in complying with the obligation to have regard to the relevant selection criteria set out in Annex III and such of the selection criteria set out in Schedule 3 of the 2011 Regulations as are relevant to the development and in particular “the cumulation with other projects” (paragraph 1(b) of Annex III of the Directive and “the cumulation with other development” (paragraph 1(b) of schedule 3 of the 2011 Regulations), the decision maker is obliged to take in to account the effects of any wider project or development of which the proposal for which permission is sought is alleged to be a part.

In Bund Naturschutz the ECJ was concerned with a dispute concerning the construction of two sections of a new federal highway in Bavaria, a road of some 130kilometres, the plans and routing for which had been decided many years earlier. The first section was 6.9kilometres in length the second approximately 3kilometres in length. One of the questions referred to the ECJ was whether the concept of “project” in Articles 1, 3 and 4 of and Annex I.7 to the original EIA Directive, Council Directive 85/337 EEC of 27 June 1985, (“The 1985 Directive”) was to be understood as meaning, in its application to motorways and express roads, that the environmental impact (a) was to be assessed solely for the section of a road link for which a development consent had been sought or (b) in addition to the area covered by that section for the road link as a whole.

The ECJ did not answer the question because it did not arise in the light of its answer to an earlier question. It was however addressed in the Opinion of Advocate General Gulmann, who believed that it was appropriate to make some comments on the problems raised by the question because of its practical importance for the future application of the Directive to motorways and express ways.

Annex I of the original Directive referred in Point 7(b) to the construction of motorways and express roads. The plaintiffs in the main action, in particular the Bund Naturschutz in Bayern eV, an ecological organisation, argued that EIA had to be carried out for the entire link road planned. That was necessary in order that the Directive’s goal of prevention could be fully achieved. The most important decision from an environmental point of view in connection with construction of roads was the route it would take. The planning for long road links such as the one in point takes place in stages – assessment of need, regional planning, route – whereby the decision concerning the overall linear route, although not binding for the final decision on the route for specific project sections, would nevertheless invariably limit the options of the project developer. To limit the obligation to carry out an EIA to specifically planned sections carried the risk of a significant restriction of the EIA’s practical importance. Projects which had already been executed in respect of part of longer road links – which perhaps in isolation appeared not to have given rise to significant environmental problems – might mean that later, in connection with planning approval for other sections, on practical grounds sufficient account would not be taken of serious environmental problems revealed by the EIAs undertaken for those sections. If, for example, sections A and C which had already been constructed were to be linked up by section B, the planning approval for the construction of sections A and C would mean that the feasibility of the planning authority’s selecting an alternative route for section B was severely restricted. [64]

The Advocate General stated that the view put forward by the plaintiffs had much to recommend it. He said;

“66.

The optimal solution is presumably for an environmental impact assessment to be carried out both in connection with decisions on the routing of the entire length of road and on decisions for the specific construction projects for sections. That is also the solution chosen by the Bundestag when it transposed the EIA Directive in connection with which, as mentioned, when amending the Law on Trunk-Roads it imposed an obligation to carry out an environmental impact assessment in both respects.

67.

That is, however, not a solution that the Member States are bound to choose under the EIA Directive. As stated by Freistaat Bayern and the three governments which have submitted observations, it is not possible to interpret the directive to the effect that it makes an environmental impact assessment mandatory for anything other than the specific projects submitted by developers to the competent authorities in order to obtain authorization to carry out construction or other works – even if the actual application relates to only one part of a longer road link which, as normally happens in practice, is to be constructed in stages.

68.

The principle underlying the directive is unambiguous: an environmental impact assessment is to be carried out for projects in respect of which the public or private developer is seeking development consent (see on this point Article 1(2), Article 2(1) and (2), Articles 5, 6 and 8 in particular, which all assume that applications have been submitted for consent to a project).

69.

That result is confirmed by the difficulties which could arise in laying down what comprises an ‘entire project’ when that concept is not the same as ‘a specific project in respect of which an application has been submitted’. In addition, there might be difficulties in carrying out an environmental impact assessment as provided for in the directive for projects which have not yet been worked out in detail. It must be self-evident that the directive cannot indirectly have the effect of forcing the Member States to depart from the normal practice according to which long road links are executed by constructing sections over staggered periods.

70.

It is, however, undoubtedly correct that, as the United Kingdom points out, the purpose of the directive should not be lost by the projects which should be subject to an environmental impact assessment being given a form which renders an environmental assessment meaningless. The Member States must ensure that the obligation to carry out an environmental impact assessment is not circumvented by a definition that is over-strict or otherwise inappropriate, in the light of the purpose of the directive, of the projects in respect of which application must be made.

71.

The important question in the present connection is not, however, which projects are to be subject to an environmental impact assessment.

It is whether, in connection with the environmental impact assessment of the specific project, there is an obligation to take account of the fact that the project forms part of a larger project, which is to be carried out subsequently, and in the affirmative, the extent to which account is to be taken of the fact.

The subject-matter and content of the environmental impact assessment must be established in the light of the purpose of the directive, which is, at the earliest possible stage in all the technical planning and decision-making processes, to obtain an overview of the effects of the projects on the environment and to have projects designed in such a way that they have the least possible effect on the environment, That purpose entails that as far as practically possible account should also be taken in the environmental impact assessment of any current plans to extend the specific project in hand.

72.

For instance, the environmental impact assessment of a project concerning the construction of the first part of a power station should, accordingly, involve the plans to extend the station’s capacity fourfold, when the question of whether the power station’s site is appropriate is being assessed.

Similarly, when sections of a planned road link are being constructed, account must be taken, in connection with the environmental impact assessment of the specific projects, of the significance of those sections in the linear route to be taken by the rest of the planned road link.”

The Advocate General’s opinion is of course not binding. However the following points are of note. First he rejected the submission that the 1985 Directive made EIA mandatory for anything other than the specific projects submitted by developers even if the actual application relates only to one part of a longer road link which is to be constructed in stages. The contrary view would raise difficulties in defining what constitutes an “entire project” when that concept is not the same as a “specific project in respect of which an application has been submitted”. In addition there could be practical difficulties in carrying out an EIA as prescribed by the Directive for projects which have not yet been worked out in detail.

On the other hand, although he expressed that opinion in unambiguous terms, he appeared to qualify it by approving the submission that Member States must ensure that the obligation to carry out an EIA is not circumvented by a definition of the projects in respect of which application must be made that is over-strict or otherwise inappropriate in the light of the purpose of the Directive, which should not be lost by the projects which should be subject to an EIA being given a form which renders an EIA meaningless. However he did not give any indication as to how that qualification was to be reconciled with the clear conclusion to which he had already come.

The Advocate General went on to express in cogent terms the view that the contents of an EIA should take in to account any current plans to extend the specific project in hand. As formulated those opinions appeared to be directed to the matters to be taken in to account as regards to the content of an EIA as distinct from at the prior stage of deciding whether an EIA is required.

The Advocate General’s emphasis of the importance, in construing the Directive, which should be attached to the purpose identified in the recital that an overview of the effects on the environment of the projects for which authorisation is sought should be obtained at the earliest possible stage was echoed in subsequent decisions of the ECJ.

In Commission v Spain the Kingdom of Spain failed to carry out an EIA in respect of the construction of a 13.2 Kilometre railway line. The railway project comprised a new line intended to bypass a particular commune and the duplication of the existing tracks between two other communes. Part of point 7 of Annex I to the 1985 Directive referred to “the construction of lines for long-distance traffic”. If the project fell within that definition EIA was mandatory. Point 12 of Annex II referred to “modifications to development projects included in Annex I”. If it fell within the latter definition EIA was discretionary rather than mandatory.

Spain argued that the project did not fall within point 7 of Annex I for two reasons. First it argued that point 7 of Annex I referred only to the construction of a new line in the sense of a new railway connection between two towns and therefore did not apply to a doubling of existing tracks. As to that it prayed in aid the fact that some of the language versions of point 7 used a term equivalent to the term railway lines, not railway tracks.

The ECJ rejected that argument holding that point 7 must be understood to include the doubling of an already existing railway track. It did so on the basis that it was clear from the Court’s case-law that the need for a uniform interpretation of Community law requires in the case of divergence between different language versions of a provision that it be interpreted by reference to the purpose and general scheme of the rules of which it forms part.

The court had already held that the wording of the 1985 Directive indicated that its scope was wide and its purpose very broad (Annamaersbedrijf PK Kraaijveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1997] All ER (EC)134; [1996] ECR I-503; [1997] 3CMLR1-[1997] Emv.LLR 265). In particular Articles 1(1) and 2(1) and the first, fifth, sixth, eighth and eleventh recitals in the preamble made clear that the 1985 Directive’s fundamental objective was that, before consent was granted, projects likely to have significant effects on the environment by virtue, (inter alia), of their nature, size or location should be made subject to a mandatory assessment with regard to their effects. [47]

On the basis of those considerations the court held that point 7 of Annex I must be understood to include the doubling of an already existing railway track. A project of that kind could have a significant effect on the environment within the meaning of the 1985 Directive since it was likely to have lasting effects on, for example, flora and fauna and the composition of soil or even on the landscape and produce significant noise effects, inter alia, so that it must be included in the scope of the Directive. The objective of the 1985 Directive would be seriously undermined if that type of project for the construction of new railway tracks, even parallel to existing track, could be excluded from the obligation to carry out and assessment of its effects on the environment. Accordingly a project of that sort could not be considered a mere modification to an earlier project within the meaning of point 12 of Annex II to the Directive. [49].

The Spanish Government’s second argument was that the conditions for applying point 7 of Annex I were not fulfilled because the project in question did not relate to long-distance traffic within the meaning of that provision but rather only to a 13.2 kilometres section between neighbouring towns. The ECJ rejected that argument as well, holding it to be without substance. It held;

“52.

As the Commission rightly maintains the project in question is part of a 251 kilometre railway line between Valencia and Tarragona, which forms part of the project known as the “Mediterranean corridor”, linking the Spanish region of Levante to Catalonia and the French border.

53.

If the argument of the Spanish Government were upheld, the effectiveness of Directive 85/337 could be seriously compromised, since the national authorities concerned would need only to split up a long-distance project into successive shorter sections in order to exclude from the requirement of the Directive both the project as a whole and the sections resulting from that division.

54.

In the light of all those considerations, the project which is the subject of the Commission’s action, which concerns laying a supplementary 13.s kilometre railway track, a 7.64 kilometre section of which covers a new route in order to bypass the town of Benicasim, and which is part of a 251 kilometre railway line, belongs in one of the categories listed in the Annex I to Directive 85/337 which must in principle be made subject to a mandatory systematic assessment pursuant to Arts 4(1) 5(1) of the Directive.”

The court added that the fact that the national authorities acted in good faith was irrelevant.

“58…it is settled case-law that an action for failure to fulfil obligations is objective in nature and the fact that a failure to fulfil obligations results from a Member State’s incorrect interpretation of the Community-law provisions in question cannot preclude the Court from declaring that there has been such a failure (Case C-3/92 Commission v Spain [1993] ECR I-5997, para 19).”

As a matter of analysis the basis on which the ECJ held that the project for the construction of the 13.2 kilometres of new track required to be subject to EIA appears to have been a finding that the project for the construction of the 13.2 kilometre railway line fell within the definition of “construction of lines for long-distance railway traffic” in Point 7 Annex I, even though in form the new line only connected two towns which were only 13.2 kilometres apart. It was to be treated as a project for the construction of a line for long-distance traffic because it was part of a 251 kilometre railway line between Valencia and Tarragona which formed part of the “project” known as the “Mediterranean corridor” linking the Spanish region of Levante to Catalonia and the French boarder.

It was no part of the court’s reasoning that in considering whether the 13.2 kilometre section should be the subject of EIA the question whether that section was likely to have significant effects on the environment should be considered having regard to the cumulation with the effects of the remaining parts of the 251 kilometre railway line. That is of course to be expected since the selection criterion of “the cumulation with other projects” in paragraph 1b of Annex III of the Directive only requires to be taken into account under Article 4(3) when a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2 of Article 4 in respect of projects listed in Annex II. If a project is listed in Annex I it must automatically be made subject to assessment.

Although there is no reference to it in the judgment of the Court, it appears from the Opinion of Advocate General Poiares Maduro that the larger 251 railway line of which the 13.2 kilometre section formed a part was not an existing railway line but a new one (see A47, page 392). The Advocate General, expressing the same opinion as that of the Court on this point, stated that if Spain’s reasoning were followed it would mean that a specific project would never be regarded as involving long-distance traffic because the successive sections of the line would all cover small distances and would connect neighbouring places. Adopting Spain’s suggested interpretation of the Directive would be likely to restrict its scope considerably and to jeopardise the attainment of its objectives.

Although the Court stated that if the Spanish Government’s argument were upheld the national authorities would be able, by splitting up the long-distance project into successive shorter sections, to exclude from the requirements of the Directive not just the sections resulting from the division but the project as a whole it did not state that the EIA which it held needed to take place as a result of the 13.2 kilometre section of the railway falling within point 7 of Article 1 had to extend to the whole 251 kilometre railway line. Nor did it state that the effects on the environment of the other sections of the 251 kilometre railway line needed to be taken into account when deciding whether the 13.2 kilometre section was likely to have a significant effect on the environment. Again that follows from the fact that a finding that the 13.2 kilometre section was a project listed in Annex I (because it fell within the definition of Point 7) meant that Article 4(1) automatically required that it be made subject to EIA.

The Court’s finding that the fact that the national authority acted in good faith was irrelevant appears to have been directed not to the decision (if there was such a decision) to split the 251 Kilometre railway line into a series of smaller sections but rather to the decision not to require EIA. This is relevant in the context of the question whether when considering whether a proposal for which planning consent is sought is part of a wider development, that question is to be answered objectively or by reference to the intentions of the developer.

Advocate General Poires Maduro in his Opinion stated;

“A48 As a railway line 251km long is constructed in stages, if Spain’s reasoning were followed it would mean that a specific project would never be regarded as involving long-distance traffic because the successive sections of the line would all cover small distances and would connect neighbouring places. Adopting this interpretation of the Directive would be likely to restrict its scope considerably and to jeopardise the attainment of its objective.

A49 The Commission’s reasoning on this point cannot be said to be contradictory, as it merely assesses the conditions for applying point 7 of Annex I to the Directive by ascertaining first, that the project in question concerns the construction of “railway lines” and, second, that the lines in question are intended for “long-distance traffic”. The length of the lines when completed is not a relevant criterion for determining whether the Directive is applicable to the project in question. The classification of the project is determined by the use of the line for long-distance traffic.

A50 Consequently, the project in question ought, pursuant to Art. 4(1) of the Directive, to have been the subject of an environmental impact assessment in accordance with requirements of Arts 5-10 of the Directive.”

Although the Advocate General was plainly concerned that the purpose of the Directive should not be undermined by splitting into stages projects which, taken as a whole, would require to be subjected to EIA under the Directive, the means by which he sought to give effect to that concern appears to have been confined to a case specific widening of the interpretation of the particular category of project described in Annex I which called for mandatory EIA. It is not clear how or whether he envisaged that general concern to be applied in a case where there is no scope for giving effect to the purpose of the Directive by a generously wide interpretation of a particular point in Article 1.

In Ecologistas the Madrid Council had approved various projects for the refurbishment and improvement of the Madrid urban ring road. As found by the ECJ the projects were part of a complex civil engineering scheme which consisted in improving and refurbishing virtually the whole of the Madrid Urban ring road, which was called the “Madrid calle 30” project. The ECJ stated that it was apparent from the order for reference that the Madrid City Council had split the larger “Madrid calle 30” project into 15 independent sub-projects, treated separately, only one of which concerned alteration or rehabilitation work on any existing road on a section exceeding 5 km, the threshold at which the regional rules applicable made a project subject to an EIA, while the larger project taken as a whole substantially exceeded that threshold. It was clear from the referring court’s explanations that, according to certain estimates, the execution of the overall scheme would lead to an increase in traffic and would involve different kinds of work in the urban areas surrounding the M-30.

Having regard to the scale and implications of the scheme the referring court wondered whether in accordance with the 1985 EIA Directive as amended by Directive 97/11 it should not be made subject to an EIA. [21]. I take the reference to “the scheme” in that paragraph of the judgment to be a reference to the wider Madrid calle 30 ring road scheme and not just the sub-projects which had been approved by the Madrid City Council.

The referring court raised four questions. The ECJ interpreted three of them as asking essentially whether the amended Directive had to be interpreted as meaning that projects for the refurbishment and improvement of virtually the whole of the urban ring road had to be made subject to an EIA taking account, inter alia, of the nature of those projects, the type of road in question, the characteristics and size of the projects, their effect on densely populated areas or landscapes having a historical, cultural or archaeological significance, and the fact that they are the result of the splitting up of a larger project concerning the execution of a series of similar works on the same road. [25].

In part the ECJ’s answer to the answer turned on its construction of parts of Annex I to the amended Directive and whether they covered urban roads and refurbishment thereof.

The ECJ held as follows;

“39 In that regard, in the same way as Directive 85/337, the amended Directive adopts an overall assessment of the effects of projects or the alteration thereof on the environment. It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works; [see, as regard Directive 85/337, Abraham’s case, paras 42 and 43.]”

“44 Last, as the Court of Justice has already noted with regard to Directive 85/337, the purpose of the amended Directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effect on the environment within the meaning of article 2(1) of the amended Directive…

45 As regards the project at issue in the main proceedings, it is clear from the order for reference that they are all part of the larger project “ Madrid calle 30”. It is for the referring court to verify whether they must be dealt with together by virtue, in particular, of their geographical proximity, their similarities and their interactions.

46 Therefore, the answer to the first three questions must be that the amended Directive must be interpreted as meaning that it provides for environmental impact assessment of refurbishment and improvement projects for urban roads, either where they are projects covered by points 7(b) or (c) of Annex I to the Directive or they are projects covered by points 10 (e) of Annex II or the first indent of point 13 thereof, which are likely, by virtue of their nature, size or location and, if appropriate, having regard to their interaction with other projects, to have significant effects on the environment.”

Ecologistas was a case in which the ECJ held that there was an existing scheme not yet completed which had been split up into a series of independent sub-projects. The scheme as a whole substantially exceeded the threshold at which the regional rules applicable made a project subject to EIA whereas all but one of the sub-projects did not. The broad statement of principle against what has come to be known as “salami slicing” was stated as being that the purpose of the amended Directive cannot be circumvented by the splitting of projects and that the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of article 2(1) of the amended Directive. The premise on which the principle appears to have been based was the existence of a project as defined by the amended Directive which is likely to have significant effects on the environment within the meaning of article 2(1) which has been split up into one or more sub-projects which, looked at on their own, would not fall into the definition of an Annex I project and/or fall below the relevant Annex II threshold ,or threshold in the domestic implementing legislation, which would trigger the need to consider whether EIA is required. The means by which the ECJ appears to have contemplated that effect is to be given to the principle was either by artificially deeming the project to fall within Annex 1 through a generous interpretation of the relevant part of Annex I, thus calling for a mandatory EIA or by requiring, as part of the consideration whether projects covered by Annex II are likely to have significant effects on the environment, account to be taken of their interaction with other projects.

It is not clear to me what the ECJ had in mind by the last sentence of paragraph 45 of its judgment were the referring to the question whether all of the sub-projects which had been accepted should be dealt with each with the others or to the question whether they should be dealt with together with the remainder of the sub-projects comprising the whole urban ring road scheme. Either way what is clear is that the ECJ held that the question was to be answered not by itself but by the referring count and by inference that the answer to the question was not predetermined by reason of what it had stated earlier in the judgment.

In Karnten the ECJ had to consider a transboundary project to construct an electricity power line connecting the Italian and Austrian grids which was to comprise 7.4 kilometres in Austria and 41 kilometres in Italy. The Austrian authority considered that it did not have to assess the environmental effects of the Austrian part of the project under the 1985 Directive because it amounted to less than the 15 kilometres threshold set for power lines in Austrian law.

Apart from the transboundary issue the project fell within point 20 of Annex 1 to the 1985 Directive “construction of over head electrical power lines with a voltage of 220kV or more and a length of more than 15 kilometres”. The question referred to the ECJ was whether the 1985 Directive was to be interpreted as meaning that a Member State must provide for an obligation to carry out an assessment in the case of such a project where the proposed scheme was to extend over the territory of two or more Member States even if the threshold giving rise to the obligation to carry out an assessment, in this case a length of 15 kilometres, was not reached or exceeded by the part of the scheme situated on its national territory but was reached or exceeded by adding the parts of the scheme proposed to be situated in a neighbouring state.

The ECJ’s answer to the question was that articles 2(1) and 4(1) of the 1985 Directive are to be interpreted as meaning that the competent authorities of a Member State must make a project referred to in point 20 of Annex I to the 1985 Directive such as the construction of overhead electrical power lines with a voltage of 220kV or more and a length of more than 15 kilometres subject to the EIA procedure even when the project is transboundary in nature and less than 15 kilometres is situated on territory of that Member State. [58].

In reaching that conclusion the ECJ’s starting point was that, but for the transboundary aspect of the project, it fell within point 20 of Annex I to the Directive and was thus a project subject to an obligatory EIA pursuant to articles 2(1) and 4(1) of the 1985 Directive. The court referred to the decision in Kraaijveld that in regard to the obligation to assess effects on the environment the wording of the 1985 Directive indicates that its scope is wide and its purpose very broad. [50]. Reliance was placed on the statement by the court in Ecologistas that the 1985 Directive adopts an overall assessment of the effect of projects on the environment and its holding that that applies irrespective of whether the project might be transboundary in nature.

Next reliance was placed on the statement in Ecologistas that the 1985 Directive had to be implemented by Member States in a manner which fully corresponds to its requirements having regard to its fundamental objective which, as is clear from article 2(1) is that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature size or location should be the subject of an assessment with regard their effects. [52].

Reliance was then placed on the passage of the judgment in Ecologistas that the purpose of the 1985 Directive could not be circumvented by the splitting of projects. The ECJ held that it follows that projects listed in Annex I which extend to the territory of a number of Member States cannot be exempted from the application of the 1985 Directive solely on the ground that it does not contain any express provision in regard to them. Such an exemption would seriously interfere with the objective of the Directive. Its effectiveness would be seriously compromised if the competent authorities of the Member State could, when deciding whether a project must be the subject of an EIA leave out of consideration that part of the project which is located in another Member State. Attention was drawn by way of analogy to aparagraph 53 of the judgment in Commission v Spain.

As a result the court held that the fact that the section located in Austria had a length of less than 15 kilometres could not in itself cause the project to be exempt from the assessment procedure laid down in the Directives. The Member State concerned had to carry out an EIA of the project in its own territory which took account of the specific effects of “that project” [57]. Although it is not without ambiguity I take the reference to “that project” to be a reference to “the project in its own territory” rather than to the effects of the project for the whole 15 kilometre length of the power lines.

In his opinion Advocate General Ruiz-Jarabo Colomer had a section on the splitting of projects subject to an EIA in case law. It is of interest that in introducing his review of cases such as Commission v Spain and Ecologistas he described them as examples in the case law of Member States proposing to split projects subject to an assessment in order to circumventing Community law. In other words he regarded them as cases where projects were deliberately split for the purpose of circumventing Community law rather than cases where the ECJ intervened to ensure that projects which were objectively part of wider schemes did not escape EIA irrespective of the reasons or motives which lay behind the splitting.

He stated that guidance may be found in the judgments concerning extensions to projects, partial execution of work in the context of transport networks, and successive works carried out over a period of time. In all those cases the court advocated a broad interpretation of the 1985 Directive and rejected efforts to limit its scope. [AG 72].

He described the Spanish Government’s argument which was rejected by the ECJ in Commision v Spain as being that “only the section concerned was subject to an assessment and that its length could not be classified as a “[line] for long-distance railway traffic” in accordance with point 7 of Annex I to the 1985 Directive [AG73]. Although it is not clear I assume that by “was subject to an assessment” he did not mean “was subject to EIA” but rather “was to be assessed as to whether EIA was required”. Were it otherwise he would be interpreting the decision in Commission v Spain as requiring the whole of the 251 kilometre railway line to be subject to EIA by the domestic authority responsible for carrying out an EIA of the 13.2 kilometre section as part of its EIA of that section rather than merely that, because the 13.2 kilometre section was part of the larger railway line, that section could not escape EIA.

On the other hand he said:

“AG 74 The difficulties raised by projects that are divided in to a number of temporary sections were highlighted in Wells, Commission v United Kingdom and Barker, in which the court reiterated the need to assess such projects as a whole. In order to preclude the subject-matter of a project from being distorted by splitting it into a number of administrative stages, thereby leading to a failure to apply Directive 58/337, the court held that EIA “must be of a comprehensive nature, so as to relate to all the aspects of the project which have not yet been assessed or which require a fresh assessment”. (Barker [2006] E.C.R.I-3949 at [48]). In short, the review obligation laid down in Directive 85/337 does not allow for any loose ends and the different administrative stages of a project must not impede the achievement of the Directive’s aims.”

In that passage the Advocate General referred to projects which were consciously divided into a number of sections or stages, albeit there was no reference to the conscious decision to split a project being done for the purpose of circumventing the need for EIA. The passage which he cited from Barker suggested that in such a case the fact that the project under consideration was part of a wider project did not just mean that the project itself could not escape but rather that the EIA which was to be carried out had to relate to all the aspects of the wider project of which it formed a part which had not yet been assessed or which required a fresh assessment. It also thereby expressively contemplated an obligation to carry out an EIA in respect of a wider project which has not yet been implemented.

Commenting on the decision in Abraham v Region Wallonne (C-2/07) [2008] E.C.R.I-1197, where an EIA had not been carried out because a project which was in principle not subject to an environmental assessment involved a modification or an extension of another project which was referred to in the annexes to the 1985 Directive, the Advocate General said that the court was aware that such a project would have serious effects on the environment and that the requirement to carry out an EIA would be circumvented “on the pretext” that there was no alteration of the length of the runway, point 7 of Annex I referring to the “construction … of airports with a base runway length of 2100m or more”. The proposed project in that case was for modification of the airport’s infrastructure, the construction of a control tower, new runway exits and aprons and work to restructure and widen the runways without altering their length. The Advocate General stated that the court, with an overall assessment criterion and with a view to ensuring the effectiveness of the Directive, held that “works to modify an airport with a runway length of 2100 metres or more thus comprise not only works to extend the runway but all work relating to the buildings, installation or equipment of that airport where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself” [AG75]

The Advocate General stated that the judgments that he referred to reflected a concern to prevent the splitting of a project from affecting the obligation to carry out an EIA. By requiring a comprehensive assessment of projects, the court concluded that an environmental impact is a phenomenon without lengths, production levels or storage capacities. Having cited the passage from the judgment in Ecologistas at [44] which stated that the purpose of the Directive could not be circumvented by the splitting of projects, he stated that the expression of that concern appeared repeatedly in the case law as a well-known rule in all cases relating to the 1985 Directive. ;

“Thus, the court emphasises that its “scope… is wide and its purpose very broad.” It is specifically for that reason that circumvention of the provision of the Directive would breech the principle of consistency in particular when failure to carry out an EIA results in the approval of projects with potentially harmful effects on the environment.” (emphasis added) [AG77].

In the words emphasised the Advocate General appeared to identify as the result sought to be avoided by the ECJ as inconsistent with the purpose of the Directive a situation in which (a) there is a failure to carry out EIA and (b) as a result projects with potentially harmful effects on the environment are approved. It is not clear whether he considered that where a project which is part of a wider project is subject to EIA limited to the effects on the environment of that project and subsequently the remaining stages of the wider project are themselves subject to EIA, that would not fall within the result sought to be avoided by the ECJ unless when the wider stages of the larger project come to be examined in an EIA they would be held not to have a significant likely effect on the environment on their own but would be held to have such an effect if but only if taken together with the effects of the prior smaller project.

The Advocate General concluded that section of his Opinion by stating;

“AG 78 Accordingly, given that a project listed in Annex I to Directive 85/337 is governed by the provision by the Directive where it is executed in a number of stages, where the administrative procedure comprises several procedures, or where it is modified, the same occurs where a project is split between the territories of more than one Member States. …”

He thereby appeared to express the opinion that it is the wider project which is governed by the provisions of the Directive and therefore by inference in respect of which EIA must be carried out even where it is executed in a number of stages provided that it is listed in Annex I to the Directive.

In Candlish a subsidiary of the South East of England Development Agency was established to implement part of the Hastings and Bexhill Five Point Plan with the aim of providing regeneration to that area. The subsidiary, which traded under the name SeaSpace, proposed to develop an area covering about 67 hectare. The proposals were for a mixed development prospectively involving 700 residential homes, 4000 square metres of business offices, 1500 metres of retail as well as open spaces and other ancillary development.

The proposal advanced by SeaSpace was that the Ore Valley Project should proceed in two phases. Phase one would be the submission of detailed planning application for infrastructure proposals and associated surface water attenuation measures for part of a site known as the Mount Pleasant site. Phase two would be the subsequent submission of an outline planning application for the wider Ore Valley project. SeaSpace submitted a planning application with regard to part of the Mount Pleasant site. The proposal was stated to be for a “spine road and associated roundabout and surface water attenuation works.” It was common ground that the actual “area of the works” to which the planning application related was properly assessed as being less than one hectare and Davis J said that it was also said that it could amount to no more than 0.5 hectare. Taken in isolation the development for which planning permission was sought was thus below the 1 hectare threshold in the second column of paragraph 2 of schedule 2 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the 1999 Regulations) which were then in operation. I was told that there are no material differences between the 1999 Regulations and the 2011 Regulations.

Taken in isolation therefore the development for which planning application was sought and granted did not constitute Schedule 2 development. No EIA was carried out prior to planning permission being granted. Davis J identified the principal point in the case as follows; where an application for planning permission is for a development which, taken on its own by reference to the application, would not require an assessment of the likelihood of significant effects on the environment, is such an assessment nevertheless required if at the time that development is prospectively part of a wider development?

As pointed out by Mr Forsdick the connection between the development for which planning permission was granted and the second phase of the proposed development was very strong. Nor was it sought to be disguised by SeaSpace. The Planning Statement which accompanied the application was entitled “Hastings Millennium Community Ore Valley: Phase I Planning Application.” At the outset of that statement it was stated: “This planning application … represents the first of two planning applications that seek to obtain permission for the Hastings Millennium Community Proposals in Ore Valley.” Later it stated: “This detailed planning represents Phase one of the Millennium Community Proposals and forms part of the wider Ore Valley proposals that will be submitted for outlining planning permission in Autumn 2004”. Phase one was described as “a key element” of the proposal prior to the submission of the wider Ore Valley Proposals and it was stated that development of the spine road would enable the first phase of the residential development, being part of the “wider Millennium Community Proposals”, to be brought forward. [7]

The application was supported by a detailed ecology report which acknowledged that there would be a separate application with regard to Phase 2 supported by an Environmental Statement and that there would have to be an EIA with regard to Phase 2 which EIA would also include Phase 1. Indeed a Scoping report had previously been submitted with a view ultimately to obtaining a screening opinion from the local authority with regard to Phase 2.

The borough planning officer reported to the planning board of the council with regard to the planning application referring to the proposal as being “to serve Housing Development Site” that being agreed to be a reference to prospective housing on the Mount Pleasant site itself. The report stated that “it is anticipated that the surrounding land would be developed for housing” and that “in the unlikely event of [the road] not extending further in to the Millennium Community Site the road would still be required to serve residential development on the Mount Pleasant Hospital site.” The report described the application as representing the first phase of the Ore Valley Community project. It concluded that the application was a “welcome first phase of the Millennium Community Scheme in this area” and recommended the grant of permission.

Although initially the challenge to the grant of permission included grounds asserting a failure to take in to account the issues relating to the wider scheme and a failure properly to consider issues relating to badgers and to contamination, the sole ground pursued at the hearing was that in granting permission the council had breeched the requirements of the 1999 Regulation.

Counsel for Mrs Candlish, the Claimant, expressly accepted that there was no suggestion that there had been a deliberate ploy designed to evade the impact of the EIA regime. Davis J said that on the contrary it was evident that there was no such a ploy and that neither the council nor SeaSpace, which had been entirely open about its long–term aims, had considered that the EIA regime could apply to the application for Phase 1. Their understanding was that such a regime would only apply at the stage of the Phase 2 application (assuming there was one) and that at that stage EIA would then include within it Phase 1 also.

Counsel for Mrs Candlish submitted that the 1999 Regulations must be construed and applied so as to give effect to the purpose of the 1985 Directive as amended by the Amending Directive 97/11 that if EIA was required it must take place before a decision on planning consent was made. Phase 1 for which the planning consent was sought had no meaningful existence on its own. The only rationale for the existence of the spine road and associated works was to provide access to the contemplated residential development of the Mount Pleasant site and thereafter Phase 2. In the absence of that it was a road which had no function or use. The reality was that Phase 1 was part of an overall “project” and as such the application for development consent for Phase 1 had to be treated cumulatively and as part of that overall project and in conjunction with Phase 2. Were it otherwise the need for an EIA in respect of Phase 1 would have been circumvented by the splitting of the project, and thence the applications for development consent, into two.

The 1999 Regulations therefore had to be construed and applied so as to extend the EIA regime to such a situation and to give effect to the 1985 Directive. If that was so the area of development involved plainly exceeded that set out in the appropriate respect in the second column of Schedule 2 and as such it was a “Schedule 2 development”. Accordingly the Council was required before taking its decision on the planning application to assess whether the development taken as a whole was “EIA development”; in particular whether it was likely to have significant effects on the environment by virtue of factors such as its nature size or location. Since on its own admission the council had made no such assessment because it took the view that the development for which consent was being sought was not Schedule 2 development the decision to grant planning application was unlawful and must be quashed.

Counsel for the council and SeaSpace submitted that the assessment of whether the application for development consent involved a Schedule 2 development was to be decided by reference to the application in itself. On the face of it the application was properly determined as not being a Schedule 2 development since no part of it was in a sensitive area and the threshold stipulated for roads was not exceeded. That approach accorded precisely with the natural meaning of the 1999 Regulations. It was also consistent with the purpose of the amended Directive. Article 4(2) thereof made clear that a case-by-case analysis was not required in each case and that thresholds might properly be set, provided the criteria in Annex III were first taken in to account and the Secretary of State (as confirmed by the recital to 1999 Regulations) had taken those criteria in to account. The assertion of “cumulative effect” underlying the asserted need for EIA was in any event theoretical only and had no practical bearing on this particular case or generally with regard to the relevant thresholds set out in Schedule 2 of the 1999 Regulations.

Davis J questioned what the practical purpose of the proceedings was since it seemed clear that both the council and SeaSpace had carried out an amount of ecological and environmental assessment with regard to Phase 1 even if not constituting EIA as such and because it was common ground that if the Phase 2 application proceeded as the claimant considered was bound to happen then at that stage there would be EIA extending also to Phase 1.

Part of the answer to that furnished by counsel for Mrs Candlish was that she retained genuine concerns about the badger and contamination issues by reference to Phase 1 even if taken on its own. Those issues might well have received fuller consideration had there been EIA at that stage which justified the claim. Although retaining some unease about the practical value of the claim Davis J said that he was prepared to accept those answers. I observe in passing that in contrast to the facts in Candlish, in this case the Secretary of State did consider in response to a request for a screening direction, whether the development for which planning permission was sought was likely to have a significant effect on the environment and was thus EIA development not with standing that it was not Schedule 2 development.

Davis J stated that if one took the 1999 Regulations on their own by reference to the natural and ordinary meaning of the words used the decision the council was unimpeachable. Both the structure and the language of the 1999 Regulations were clear. Before consent or development could be given it had first to be assessed as either a Schedule 1 or Schedule 2 development. A schedule 2 development was only an EIA development if it was likely to have significant effects on the environment. But the issue of likelihood of significant effects only fell to be considered where the development was a Schedule 2 development (assuming no sensitive area was involved). There was therefore a two stage process; and the question whether an application was an EIA application (that is to say one likely to have significant effects on the environment) only arose if the application had first been assessed as a Schedule 2 application (as defined). The definition of “EIA application” and the wording of, for example Regulation 7 showed that it was the application for planning permission which was to be considered for that purpose. Moreover such an interpretation and approach was clear and easily workable by planning officials. [56][57].

However Davis J said that he accepted the submission of Mrs Candlish’s counsel that implementing regulations should be construed so as to give it effect to the purpose of the particular Directive requiring implementation; see for example Marleasing S A v La Commercial International de Alimetacion S A[1990] E.C.R.I-4135 and that this particular Directive had a wide scope and a broad purpose; see para 31 of the Kraaijeveld judgement.

Counsel for Mrs Candlish submitted that the reality was that the particular planning application was part of a wider project. The spine road had no meaningful existence on its own; it only had any purpose if there followed residential development of the Mount Pleasant site to be followed thereafter in due course by the totality of the Ore Valley project.

As to that Davis J expressed the view that while one could not predict as a matter of inevitability what would happen, the present indications were that it was probable, although not certain, that eventually there would thereafter be an Ore Valley development of some kind (even if not corresponding entirely to the present proposals) and that it was very probable indeed that there would at the least be residential development of the balance of the Mount Pleasant site. Certainly the evidence showed that no application would have been made for the Phase 1 development were it not for the proposals with regard to the Phase 2 development. Reports submitted on behalf of SeaSpace were quite clear and open about that. Further the spine road had no function without some further development [59].

I interpose to observe that by contrast, in this case it was the position of the Secretary of State and the Council that the application to demolish the Chapel would have been made irrespective of the Council’s plans for Klondyke Phases 2 and 3. Again, unlike the position in Candlish, it could not be said that the demolition of the Chapel had no function without some further development. It was derelict and represented a hazard. While that is not inconsistent with it having been a small part of the wider Klondyke Phases 2 and 3, it is in my view plain that it cannot realistically be said that the proposed demolition of the Chapel had no function without Klondyke Phases 2 and 3.

Mrs Candlish’s counsel’s position was thus that there was in substance an application for a wider project than simply the spine road, that that wider project involved an area of development clearly exceeding any applicable threshold and thus called for EIA. Davis J added that that approach could be said although he had no note that counsel had actually said it at least to fit with the title words to the various categories and columns contained in paragraph 2 of Schedule 2 viz: “The carrying out of development to provide any of the following…”. It could thus be asserted that the spine road development was being carried out to provide an industrial estate development project and/or urban development project in the form of the Ore Valley project.

Davis J did not accept those submissions. He held that is was plain that the 1999 Regulations were geared to the actual application for development consent. That that was a legitimate approach for a Member State to adopt seemed to him to be indicated by the definition of “development consent” and the references thereafter to such consent in the amended Directive. It also accorded with the observations of the Advocate-General in paragraphs 67 to 69 of his Opinion in Naturschutz.

In his view there was no justification for treating the word “development” as used repeatedly in the 1999 Regulations, as though it meant “project” of some wider kind; and the Regulations were clear that the relevant assessment is to be made by reference to the application for planning permission. Indeed were it otherwise there could be difficulties in any given case in assessing just what “project” might be involved or, even if there was some wider project in mind just what form it might take. Those were precisely the considerations alluded to by the Advocate-General in the Naturschutz. In that context however he stated that he would perhaps not give quite so much emphasis to that particular point as did counsel for the Council and SeaSpace. After all if there was a Schedule 2 development (as defined) the planning authority in deciding whether such development was EIA development (see Regulation 4(5)) had to do the best it could in assessing, for example, cumulation implications. [61].

Even so the case before him illustrated the practical difficulties potentially involved in Mrs Candlish’s argument. The planning application for Phase 1 in respect of the spine road (and associated works) was not just ostensibly an application for such development; it was in fact an application for such development. If it was nevertheless in some way to be treated as an application for the Ore Valley project that posed difficulties for the assessment said then to be required; for even if there was a possibility that there might be some eventual Ore Valley project there could be no certainty at all as to what eventual size and form (e.g. in the mix of housing, shops, office, etc.) it might ultimately take or be permitted to take, assuming planning permission for that project was granted at all.

Counsel’s alternative submission which Davis J thought was really a variation of his first was that the imposition of the criteria and thresholds could not be a complete answer when the development which was ostensibly the subject of the planning application had no meaningful existence or purpose independent of a wider project, which wider project would exceed the stipulated thresholds. Davis J said that he had some difficulty with the emphasis which counsel placed in that context on a development having “no independent existence”. Clearly if that was the case that was a very strong factual pointer to there being a wider project in contemplation. But he could not see that it necessarily had any legal bearing on the interpretation of, or application of, the 1999 Regulation.

For example an urban development project, for which planning consent is sought, may have an area of development not exceeding 0.5 hectare but may be a perfectly viable and sufficient project in its own right; the developer, however, may openly accept that he would not have sought development consent for that development purely taken on its own and only does so because it would be a good starting point for further development on an adjoining site which he hopes to be able to achieve. On counsel’s argument Davis J said that that scenario must also as he saw it attract EIA regime; even though the initial application relates to a development having an “independent existence”. [63]

Davis J said that underpinning counsel’s submissions was the proposition that the overriding purpose of the 1985 Directive was to subject to the EIA regime projects with the potential for having significant effects on the environment. He said that it could broadly be accepted that that was indeed the purpose. But to his mind it was self-evident that the 1985 Directive (in particular by article 4.2) had, by permitting the creation of criteria and thresholds, refined that purpose (in the sense that such criteria and thresholds are generally speaking permissible and not defeating the principal purpose). Were it otherwise, then, as was pointed out in the Kraaijeveld case such criteria and thresholds would themselves have no purpose.

The recitals to the Amending Directive 97/11 themselves had made clear that Member States were not required to examine cases falling below the thresholds or outside the criteria on a case-by-case basis. As put by Schiemann L.J. in Berkley v Secretary of State for Environment (2) [2002] [EWCA CIV1012;[2002]Env.L.R.14 at [47];

“The amended Directive is not intended to prevent all development which is likely to have a significant effect on the environment. It is intended to improve the quality of the decision making process in a group of places… in relation to developments falling within Annex II the Community has recognised that in some cases it will be desirable to insist that the EIA procedures be gone through but that this will not be desirable in all cases.”[64].

Counsel had difficulty in disagreeing that his approach would involve every planning authority being required to assess every planning application on a case-by-case basis (viz.to assess cumulation and to see if a wider project was directly or indirectly involved). However he asserted that in 9 cases out of 10 there would be no difficulty for a planning authority and in any event in order to achieve the overriding purpose of the 1985 Directive a purely mechanistic approach on the part of planning authorities should be avoided.

Davis J held that that submission did not give effect to the rationale of the Directive permitting Members States to provide for threshold and criteria. Further in Berkley No.2 where the main issue was whether it was permissible for this country to establish, by the 1999 Regulations, guidelines which in the relevant respects could be “mechanically applied” (see para.3 of the judgment), it was held that it was. The reasons of the court in Berkley No.2 (in particular, as set out in paras 48-50) seemed to Davis J to be contrary to counsel’s submission.

“48 Mrs Sharpston admits that the Directive does not permit the setting of thresholds purely by reference to size. We agree that Article 4 (3) and Annex III and the case law to which we have referred make clear that the Member States in deciding upon criteria will need to take a variety of matters in to consideration other than size. However that does not have as its logical consequence that the criteria themselves must refer to each or all of those matters. We reject the submission to the contrary.

49.

The Directive clearly envisages, as the case law confirms, that Member States can establish criteria in advance and that cases on one side of the line do not need to be subject to an EIA assessment. It is manifest that one can always conceive of possible situations in which by accumulation of notional sites and notional developments a devastating effect on the environment could be produced. Member States are under a duty to consider whether the criteria which they establish will ensure, before consent is given, projects likely to have significant effects on the environment (Art.2 with my emphasis) will be subjected to an EIA. They must take in to account possible cumulative effects and the criteria in Annex III.

50 There is no reason to suppose that the Secretaries of State have failed to do this. Nor is the end result on its face irrational or very surprising. The position is quite different from that which appertained in the Ireland case. There it was manifest from the material before the Court that the transposition was not Community Law compliant. In the present case the material produced by Lady Berkley does not have that effect and we do not lengthen this judgment by setting it all out.”

Davis J added that Berkley No.2 had involved a challenge raised to an urban development project which did not exceed the specified thresholds. He observed that, though the prospect of cumulation had in that case been raised and emphasised by counsel for the Claimant (see para 40), it was found that it could not be held that the development in question might be an EIA development; see para 44. [65]..

Davis J stated that, as the Court of Appeal in Berkely No.2 noted, it is always possible to conceive of a situation where an accumulation of notional developments could produce a devastating effect on the environment. But it was also to be noted that under the amended Directive (by Art.4.3) Member States were required to take the relevant selection criteria in Annex III into account. Such criteria included cumulation with other projects. In fixing the criteria and thresholds set out in schedule 2, the Secretary or State took the selection criteria contained in Annex III to the Directive into account; see the recital to the 1999 Regulations. Thus the thresholds were chosen with the risk of cumulation having first been taken in to account.

Davis J rejected the submission that the 1999 Regulations had not properly implemented the Directive in setting a one hectare threshold for “roads”. In his view the wording of the 1999 Regulations belie that submission which was also contrary to the actual decision to the Court of Appeal in Berkley No.2.

Davis J identified additional factors, apart from the factor relating to cumulative impact which the Secretary of State took into account before fixing the thresholds and criteria in Schedule 2, which he considered supported the view that the 1999 Regulations complied with the Directive. They were as follows;

“67.1

First, even where thresholds are not exceeded, EIA will always be required for development in sensitive areas (as defined).

67.2

Secondly, even where thresholds are not exceeded, there is the right of a person to request the Secretary of State to make a direction under Regulation 4(8).

67.3

Thirdly, where there is evidence of the possibility of a wider project it is likely that that will feature in the deliberations of the planning authority on purely planning grounds; as in fact happened in the present case.

67.4

Fourthly, as pointed out by Mr Harwood, an asserted fear of small projects having an advance cumulative effect has to be looked at practically (and as a matter of real risk), not as a matter of theory. That accords with the legal authorities and also with practical reality; for example, for a developer or developers in a context such as the present deliberately to split applications to avoid EIA (and it may be queried how many would wish to do that) would involve significant practical burdens, in terms of complexity, expense and uncertainty of outcome; quite apart from the requirements of any applicable Strategic Environmental Assessment.)[67].”

Davis J held that the decision of Simon Brown J in R v Swale BC Exp. Royal Society for the Protection of Birds[1991] J.B.L 39, represented further authority which told against the submissions of the claimant’s counsel. That was a case involving among other things a consideration of the 1988 Regulations which had been implemented in the light of the original 1985 Directive. Davis J said that as part of his broad conclusions in that case Simon Brown J said as proposition No.3;

“The question whether the development is of a category described in either schedule must be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question whether it “would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location” should, in my judgment, be answered rather differently. The proposal should not then be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development. This approach appears to me appropriate on the language of the regulations, the existence of the small development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, developers could otherwise defeat the object of the regulations by piecemeal development proposals.” [68] (emphasis added).

Davis J stated that Simon Brown J’s comments on what he called the “further question” accorded with the comments of the Advocate-General in the Naturschutz case at paragraph 71 and that their correctness had since been confirmed in effect under the 1999 Regulations by the provisions of Regulation 4(5) which required a planning authority, at the stage of considering whether a Schedule 2 development was an EIA development, to have regard to the relevant selection criteria set out in Schedule 3 which included consideration of cumulative development.

Davis J expressed the view that Simon Brown J’s observations, which he thought were strictly obiter, were as much applicable to the 1999 Regulations as to the 1988 Regulations (which earlier Regulations it was to be noted were made to implement a Directive which had in principle sanctioned the introduction to thresholds). Indeed those observations fitted entirely with the actual wording of the subsequent 1999 Regulations.

Davis J said that although he was not strictly bound by Simon Brown J’s observations they were on any view highly persuasive. They had been frequently cited in this field and in the intervening years had been applied by planning authorities. The decision had been cited by the Council in the case before him in its response to the letter before action. He thus was not sure that it would be right for him to not follow those observations even if he entertained doubts as to their correctness. As it was he agreed with them. [70][71].

In conclusion Davis J held that the decision of the Council that this was not an EIA development by reference to the planning application for the spine road and associated mini-roundabout and surface water attenuation works was in accordance with the wording of the 1999 Regulations naturally and fairly read, was in accordance with the wording of and purpose behind the 1985 Directive (as amended) and was in accordance with authority, both of European Court and of the English Court [72].

It is not clear whether the decision in Commission v Spain preceded that of Davis J in Candlish. In any event it was not cited to him. The cases of Ecologistas and Karnten of course came after his decision. In argument it was not submitted by Mr Harwood that Candlish was wrongly decided whether for being inconsistent with those decisions or otherwise. Nor was it submitted that the extract from Simon Brown J’s judgment in Swale cited by Davis J was wrong on either basis. I shall return to Candlish below.

In Ellson planning permission had been granted by the London Borough of Greenwich in relation to a substantial development on two wharves in Deptford. That planning permission was granted after the obtaining of the necessary EIA required by the 1985 Directive as amended by Directive 97/11. However that planning permission was withdrawn by consent after the issue of judicial review proceedings that one of those who had voted on the grant of the planning permission had a conflict of interest.

Thereafter the managers of one of the wharves proposed to proceed with the demolition of Borthwick Wharf, one of the buildings on the site, irrespective of the fact that the planning permission had been withdrawn and that it would have to be re-applied for and might not be granted in the same or any form.

Burton J stated that as far as English domestic law was concerned the demolition of the building was exempt from planning control as a result of section 55 of the Town and Country Planning Act 1990 because it related to demolition of a commercial building, did not require planning permission and was not the subject of any listing opposition or any Building Act opposition. On the face of it thereforethe managers were not acting unlawfully in proceeding with the demolition.

Counsel for the Claimant did not suggest that the demolition of the Wharf was a project or a development of itself. Burton J stated that looking at the Directive in which by Article 1 project and development were referred to and defined this was not such. Counsel for the Council pointed out that the whole ambit both the Directive and its annexe and the Regulations and the requirements which were put in place as a result of the Directive all related to construction and not to destruction.

Counsel for the Claimant accepted that the proposed demolition required neither consent as a matter of domestic law nor its own environmental assessment as a result of the Directive. His case was that the demolition was a necessary preparatory step and integral part of the development which was not at all certain to proceed in the light of the withdrawal of the planning permission. As a result it should not be permitted to go ahead until that much was clear, not least because if a fresh and different planning consent were granted there would probably need to be fresh and different environmental assessment of that project within the Directive which could include reconsideration of the question of demolitions.

He relied on Swale which Burton J summarised as holding that it is not possible to avoid – without using that word to suggest any deliberate evasion – a requirement for environmental assessment by splitting up what was in reality one development into two separate developments both of which taken separately fell below the level for requirement for an environmental statement. He cited the passage from Simon Brown J’s judgment in Swale cited by Davis J in Candlish in which he answered the “further question” which he said with respect obviously made sense.

Burton J rejected the submission that because the demolition was the first step in the development it could not as a matter of good sense be permitted for it to take place except as part of the development and consequently covered by both the planning permission and the necessary environmental statement. His reason for rejecting it was that on the evidence he concluded that he had to decide the injunction on the basis that an EIA the demolition was an independent act. Even though it would make it easier if the planning permission were subsequently granted for that development to be carried out it was far from certain that that planning permission would in fact be granted.

The basis on which he accepted that the proposed demolition was an independent act was his acceptance of evidence explaining the intentions of the managers of the wharf and the proposed development, the second defendant.

In that evidence it was not suggested that the demolition was being carried out as a first stage in the development. It was stated that the second defendant’s intention to proceed with the demolition of Borthwick Wharf notwithstanding the anticipated quashing of the planning permission. The second defendant wished to demolish regardless of the outcome of the re-determined planning permission because it would increase the value of the site and reduce the cost to maintain the site once the wharf had been removed. Even if permission were not obtained on the re-determined application, the allocation in the UDP meant that the site would be redeveloped if not pursuant to the re-determined application then pursuant to another application and any redevelopment of the site would involve demolition of the wharf. The demolition of the wharf would enable the second defendant to carry out site investigation works which could not be carried out while the Borthwick Wharf building remained in place in order to reform the second defendant’s design and method of construction, the demolition would allow the second defendant to progress agreed archaeological investigations which could not be carried out pre-demolition and it would permit access to the river wall to carry out repairs in a safe manner.

In those circumstances Burton J concluded that it was not arguable that the proposed demolition was unlawful.

In refusing permission to appeal Moses LJ summarised Simon Brown J’s dicta in Swale as being that “it is necessary to take a view as to the objective reality of what was proposed. It is no good a developer seeking artificially to separate two aspects of the same development in the hope that individually they will receive a more favourable consideration.” ([2006] EWCA CIV 1436 at para 10).

Moses LJ cited Simon Brown J’s statement that: “a proposal should not be answered in isolation. If in reality it is to properly be regarded as an integral part of an inevitably more substantial development” which he described as an “almost self-evident proposition” (para 10). However he said that it was not possible by reference to that proposition to say that the proposed demolition in the case which he was considering could be controlled and restrained on the ground that it was made with a view to a proposed development of mixed residential and commercial use. That was for two reasons. First the evidence was that intention of the developer was to carry out the demolition whether the planning proposal went ahead or not. Second if the outstanding planning permission were granted then Borthwick Wharf would be demolished but if it were refused the building could still and would still be demolished. (Paragraphs 11 and 12).

Although Moses LJ described the approach of Simon Brown J in Swale, which he approved, as involving the need to take a view as the objective reality of what was proposed and in particular as to whether in reality the proposal is properly to be regards as an integral part of inevitability more substantial development, in answering that question it is clear that both Burton J and Moses LJ were of the view that evidence as to the intentions of the developer was both relevant and admissible.

In R(Littlewood) v Basset Law District Council planning permission was granted for a project which included a pre-case concrete manufacturing facility as the first phase of the redevelopment of a former refractory works. The principal ground on which the decision was challenged related to the failure of the council to require the production of a master plan for the area as a whole before determining the application. It had required an Environmental Statement on the basis that the possible cumulative effects of future redevelopment of the site should be considered but the developer did not accept that a master plan was required at that stage as the development proposals were said to be “stand alone” and not reliant on any future development of neighbouring land. The planning officer reported that the applicant’s urgent need for the manufacturing facility had required it to be applied for in advance of the master plan which would follow and that a proposed section 106 agreement included the provision of that master plan within 12 months of the commencement of the development. The council’s failure to require the production of a master plan for the area as a whole was alleged to comprise a failure to take in to account a relevant planning consideration and to have been perverse. It was also alleged to comprise a failure to take in to account the likely significant environmental effects of the development, in particular, the cumulative impact of the proposal together with any likely future proposals on the rest of the site contrary to the requirements of the 1999 Regulations.

Sir Michael Harrison dismissed the application holding that the council’s decision to determine the application without insisting on a master plan as a pre-condition, but requiring its subsequent production by section 106 obligation, was a planning judgment which could not be said to be “Wednesbury” unreasonable. At that time no proposals had been formulated for the rest of the site and so there could not have been a cumulative assessment of the proposed developments. There had been no, or no adequate, information upon which a cumulative assessment could have been based. In those circumstances there would had been no legal requirement for a cumulative assessment under the 1999 Regulations involving the rest of the site.

The council had given a screening opinion that the proposal required the submission of an Environmental Statement to accompany the application. The reason given was that the proposed development was Schedule 2 development which was likely to result in significant effects environment sufficient to warrant the submission of a EIA by virtue of a number of factors, the first being “the possible cumulative effects in that the proposed application should not be considered in isolation from the whole of the Steetley site.”

The Planning Statement accompanying the application stated that the current application should be considered on its own merits and was designed to be capable of implementation without the requirement of other parts of the site to be involved. There was an extremely urgent business need for a new pre-cast concrete manufacturing facility to replace an existing facility elsewhere in the UK. The Environmental Statement stated that the Pre-Cast Concrete Manufacturing facility formed the first phase of a future wider regeneration of the Streetley site. A master plan for the future development of the site had not been prepared. Any future phases of development on the Streetley site would “be the subject of Environmental Impact Assessment and potential Type 2 cumulative impacts for the Phase 1 Scheme and future phases of Development will be addressed at this point.” (paragraph 9).

Sir Michael Harrison said that the main thrust of the challenge was under the EIA regime although many of the arguments were common to both that regime and the planning regime. He described the general point of this part of the challenge as being that the proposed development was not a standalone development. It was phase 1 of a wider regeneration proposal. It was therefore necessary to have a master plan to judge the cumulative effect of Phase 1 together with the future proposals for the wider area because it might show that the harmful effects of the present application could be avoided when the wider area was taken into account, but it would be too late to do so after the grant of planning permission Phase 1.

Counsel for the claimant relied on the provisions of the European Guidelines for the assessment of cumulative impacts which the judge said referred to the cumulative impacts as including reasonably foreseeable actions and potential future impacts. He accepted that the normal approach would be to assess only the cumulative impacts from projects which have been permitted but in that case relied upon the fact that the council had required the developer as part of the section 106 agreement to produce a master plan within 12 months of development which he submitted showed that the council thought there would be potentially significant environmental effects but that they had failed to use their power under regulation 19 of the 1999 Regulations to require further information. He further relied on national guidance that an obligation in a section 106 agreement was only a material planning consideration if it was necessary. It followed that the council must have thought a master plan was necessary. By granting the planning permission without having further first required a master plan he submitted that the council had failed to take account of the environmental information which they had identified as being necessary in order to assess the likely environmental effects of the development contrary to the 1985 Directive and the 1999 Regulations. That was said to be contrary to the dictum of Simon Brown J in Swale approved by Davis J in Candlish when he said that the proposal should not be considered in isolation if in reality it is properly to be regarded as in integral part of an inevitably more substantial development.

Counsel for the council relied on a consultation paper issued by the Department for Communities and Local Government providing an EIA good practice guide which stated that;

“In most cases detailed consideration of the combined effects of the development proposed together with other developments will be limited to those areas that are already begun or constructed or those that have not been commenced but have a valid planning permission.”[23]

He submitted that it was not possible to apply the reasonably foreseeable test for cumulative assessment to a situation where there was no formulated proposal for the wider development and where neither European or national law or policy required the generation of a future proposal for an assessment to be made.

Sir Michael Harrison stated that he could understand why the claimant had raised the issue of a master plan. The proposed development was described in the application as “Steetley Regeneration Phase 1” and the Environmental Statement made it clear that it was the first phase of a future wider regeneration of a Steetley site.

It was clear from the council’s Scoping opinion that they thought at that time that the application site should not be considered in isolation from the whole of the Steetley site. However by the time the application came to be determined no proposal for the wider area had yet been formulated by the developer.

Against that background Sir Michael Harrison expressed the view that the council’s decision to determine the application without insisting on the master plan as a pre-condition but requiring its subsequent reduction by a section 106 obligation was a planning judgment which would not be said to be Wednesbury unreasonable. [31]

Equally importantly he stated that at the time no proposals had yet been formulated for the rest of the site. He said;

“I simply do not see how there could be a cumulative assessment of the proposed development and the development of the rest of the site pursuant to the EIA Regulations when there was no way of knowing what development was proposed or was reasonably foreseeable on the rest of the site. The site was not allocated for development in the local plans. No planning application had been made and no planning permission given in respect of the rest of the site and no proposals had yet been formulated for that part of the site. There was no, or any adequate, information on which a cumulative assessment could be based. In my judgment there was not a legal requirement for a cumulative assessment under the EIA Regulations involving the rest of the Steetley site in those circumstances.

Having therefore considered the various submissions made under the planning regime and under the EIA regime, I have come to the conclusion that there was no legal error involved by the council not insisting on a master plan as a pre-condition to the grant of permission, and that there were no obligation on the council in the circumstances to consider the cumulative impact of the unknown future development on the rest of the Steeley site. In my view the council were entitled to decide the application as a stand alone development and to require the subsequent production of a master plan by way of a section 106 agreement so that cumulative impact could be considered when future proposals for the rest of the site were forthcoming”.[32][33].

It is important to appreciate the legal context of the decision under challenge when considering Sir Michael Harrison’s dicta and conclusion. Unlike in this case the council had given a screening opinion that the proposal required the submission of an Environmental Statement to accompany the application. In reaching that opinion the council had concluded that the development was Schedule 2 development which was likely to result in significant effects on the environment sufficient to warrant the submission of an EIA by virtue of a number of factors one of which was “the possible cumulative effects in that the proposed application should not be considered in isolation from the whole of the Steetley site”.

A conclusion had therefore already been reached that the proposed development was EIA development apparently inter alia by reference to the selection criterion in the 1999 Regulations which corresponded to that contained in paragraph 1(b) of Schedule 3 of the 2011 Regulations, namely “the cumulation with other developments.”

The case was thus not concerned, as this case is, with the adequacy of a screening direction (or screening opinion) and in particular with the question whether at that stage it is permissible when assessing whether the development for which permission is sought is likely to have a significant effect on the environment, to confine the assessment by reference to the proposed development without reference to a wider project of which it is said to be a part.

Although an Environmental Statement had been submitted by the developer pursuant to the screening opinion and although the case turned on the failure of the council to insist on a master plan as a pre-condition of granting permission, it would appear that in substance as a matter of analysis the case turned on the adequacy of the “environmental information” as defined in Regulation 2(1) of the 1999 Regulations (as also in Regulation 2(1) of the 2011 Regulations) which included both the environmental statement and any further information which was defined (again as in the 2011 Regulations) as information referred to as further information in Regulation 19, that is to say information provided in response to a notification by the planning authority that it is of the opinion that the statement referred to by the applicant as an environmental statement should contain additional information in order to be an environmental statement. An environmental statement was defined in Regulation 2(1) (as in the 2011 Regulations) as a statement that includes such of the information referred in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard to in particular to current knowledge and methods of assessment, reasonably be required to compile but that includes at least the information referred to in Part II of Schedule 4. Paragraph four of Part I of Schedule 4 in both sets of Regulations was in these terms;

“A description of the likely significant effects of the development on 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 …”

As can be seen the description of what must be included in an environmental statement in paragraph 4 of Part I of Schedule 4 and in particular “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 the existence of the development” is not the same as the criterion in paragraph 1(b) of Schedule 3 for screening Schedule 2 development, namely that the characteristics of the development must be considered having regard in particular to the cumulation with other development.

In addition there is this further difference. Where a local planning authority or the Secretary of State has to decide under the Regulations whether Schedule 2 development is EIA development, the planning authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development. The only question in such a case is whether the “cumulation with other development” in a particular case is relevant to the development being screened.

By contrast there is built in to the definition of an “Environmental Statement” the qualification that it need only include such of the information referred to in Part 1 of Schedule 4, including the information specified in paragraph 4 of Part 1, 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 compile. Similarly, the definition of further information in Regulation 19 is qualified by reference to the opinion of the planning authority or the Secretary of State that the purported Environmental Statement should contain additional information in order to be an Environmental Statement.

As mentioned, Mr Forsdick sought to support his proposed distinction between projects that are integral parts of inevitably more substantial developments, on the one hand, and projects which are separate, even if they may subsequently be part of a wider whole, on the other, in part by analogy with the decision in Littlewood. Unless and until there are concrete proposals for the wider whole, he submitted, the screening stage as well as the subsequent EIA itself cannot proceed on a satisfactory basis. Environmental effects of inchoate aspirations for possible later proposals cannot sensibly be assessed. In fact a curiosity of Littlewood is that although Sir Michael Harrison said that he could not see how there could be a cumulative assessment of the proposed development and the development of the rest of the site pursuant to the EIA Regulations (by which I took him to refer to the definition of Environmental Statement and further information) when there was no way of knowing what development was proposed or was reasonably foreseeable on the rest of the site, no planning application having been made or given in respect of the rest of the site and no proposals having yet been formulated for it so that there was no or no adequate information upon which a cumulative assessment could be made, nonetheless at the earlier stage of the screening opinion one of the factors which led the council to conclude that an Environmental Statement was required was “the possible cumulative effects in that the proposed application should not be considered in isolation from the whole of the Steetley Site”. Thus the difficulties which led Sir Michael Harrison to conclude that there was no breach of the Regulations by reason of the failure to insist on a master plan which included an assessment of the larger site did not apparently prevent the council from concluding that one of the reasons why the proposed development was EIA development was “the possible cumulative effects in that the proposed application should not be considered in isolation from the whole of the Steetley Site”.

In Bowen-West, Laws LJ held that it is not possible to “read across” to a case which is not about screening at all, but rather about the appropriate scope of an EIA, the approach adopted in screening cases where the courts have been energetically concerned to put a stop to the device of using piecemeal applications as a means of excluding larger developments from the discipline of EIA. [32]

In that case the Secretary of State granted, on appeal from a refusal by the local waste authority of an application made in July 2009, permission to dispose on a landfill site low level radioactive waste (LLW) in addition to hazardous waste (HW) which was already permitted. Before the initial refusal of planning permission by the local waste authority the owners of the site had decided that they would seek permission to extend the period for completion of the proposed works to 2016 and that two years after the instant application they would also seek a major extension of the landfill site to accommodate a larger amount of waste by 2026. By the time of the inquiry leading to the decision it had not been decided whether only HW was to be disposed of in the extended facility or whether LLW was to be included. However, the prospective application for permission for the larger scheme would clearly allow for the disposal of LLW.

Laws LJ stated that there was no contest but that the owners’ application was for EIA development so that an Environmental Statement was required under the 1999 Regulations. An Environmental Statement was accordingly prepared, but it addressed the environmental effects of the current proposal in isolation.

Laws LJ identified the central question which the court had to decide as being whether the Secretary of State deciding on appeal whether to allow the application was bound to treat the intended further proposals as involving or constituting “indirect, secondary or cumulative effects” of the existing proposal within the meaning of paragraph 4 of Part 1 of Schedule 4 to the 1999 Regulations whose material provisions I have cited above. The claimant also advanced an alternative case that the “project” which the Secretary of State had to consider was in fact the larger scheme not yet applied for by the owners and for that reason the larger scheme’s effects had to be considered.

The appellant’s principal case was that the current development for which planning permission was granted by the Secretary of State was “demonstrably but Phase 1 of a much larger scheme and will lead to a ‘foot in the door’ for major further planning permissions on the same site for the same use”. That being so, the deputy judge ought to have concluded that the Secretary of State had erred in failing to treat the intended further proposals as involving “indirect secondary or cumulative effects” and ought, accordingly, to have held that those effects should have been assessed within the EIA process.

There was a further ground of appeal that the deputy judge was also in error in applying the conventional Wednesbury standard of review as a test of the legality of the Secretary of State’s view as to the proper scope of the required EIA. It was submitted that the law of the European Union requires a more intensive judicial scrutiny.

As to the appellant’s alternative argument, the appellant had not originally suggested that the owner was in some way obliged to give effect to its overall aspirations for the site by making a single application for planning permission for the whole scheme for 3 million cubic metres up to 2026. She accepted that the Secretary of State was entitled to treat the application as a “stand alone” proposal in the sense that it represented a proper application for planning permission for a distinct project. But she asserted that, as regards the EIA obligations in the 1999 Regulations, the fact that the proposal was plainly a much larger scheme required the Environmental Statement to cover the effects of the latter.

In that regard she relied on Kraaijveld, Commission v Spain and Ecologistas as authority showing that the 1985 Directive has a wide scope and broad purpose. She also prayed in aid the fact, which was common ground, that the 1985 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.

However, in a supplementary skeleton argument the appellant submitted that the “project” which fell to be assessed “under the Directive obligations” was the whole scheme up to 2026. Laws LJ stated that it is elementary that an EIA must cover the whole of a project for which authorisation is sought. [21]

Laws LJ, with whose judgment the other members of the Court of Appeal agreed, rejected that argument. Article 1(2) of the 1985 Directive defines the term “project” as including “the execution of construction works or of other installation of schemes”. He did not accept that the relevant project in that case was the whole prospective scheme up to 2026. He said that his reasons for so concluding were relevant also to the question whether, assuming the project to consist only in the proposal for which planning application had been sought, its context as part of the intended larger scheme meant that the latter had to be considered by way of an assessment of the proposal’s “indirect secondary or cumulative effects”.

His reasons were as follows:

“24.

First, I see no reason to disagree with the Inspector’s conclusion (IR 7.73) that the July 2009 proposal was a ‘stand alone proposal which can be and is being considered on its own merits’ or the Secretary of State’s like conclusion at para 4 of the decision letter. This is so notwithstanding the fact (see para 4 of the appellant’s principal skeleton) that the third respondent’s intention has been to achieve a continuing facility for waste disposal effective, without interruption, until 2026.

25.

Secondly, the judge was clearly right in my view to hold at [40] that:

‘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; [that is Brown v Carlisle City Council [2010] EWCA Civ 523; [2011] [Env L.R. 5] or the Madrid ring road project in the Ecologistas case; or the Mediterranean Corridor rail project in Commission v Spain.’

Thirdly the Inspector stated (again IR at 7.73) that ‘at present, there are no details of any future proposals’. This was challenged before the deputy judge: see [58] of the judgment. Clearly there was a degree of information about the overall intended scheme given in Dr Wilson’s evidence to the inquiry. But, in my judgment, the Inspector was perfectly entitled to state that there was a want of detail.

26.

All these considerations in my judgment point to the conclusion, which I regard as inescapable, that the ‘project’ in this case is only the proposal contained in the July 2009 application. And I would so conclude whether the issue is one of law or one of judgment for the Secretary of State and in the latter case whatever the appropriate standard of review.”

As mentioned, the appellant’s submission which was rejected by the Court of Appeal was that “the ‘project’ which fell to be assessed under the Directive obligations was the whole scheme up to 2026” (emphasis added). Although the stage (at which the project fell to be assessed under the Directive obligations) which was in issue in that case was the stage of the Secretary of State having to take into account, as part of “the environmental information”, before being entitled to grant planning permission, the Environmental Statement which was defined as including such of the information referred to in Part 1 of Schedule 4 as was reasonably required to assess the environmental effects of “the development”, the submission appeared to be couched in more general terms such as to include the prior obligation, had it arisen, on either the local waste authority or the Secretary of State to consider at the screening stage whether “the development” was or was not EIA development.

Although, as appears below, the Court of Appeal made it clear that different considerations apply as between the screening stage and the scope of the Environmental Statement stage as regards the question of what cumulative effects need to be taken into account, as it seems to me no such distinction was either expressed or implicit in Laws LJ’s approach to deciding whether the project which falls to be assessed under the Directive obligations is confined to the development proposal for which application is explicitly sought or some wider development of which it is alleged to form a part.

Accordingly, in my judgment, the passage cited above is applicable to the first question raised on the challenge to the Secretary of State’s decision in this case, namely whether he erred in treating the Council’s application as being confined to an application to demolish the Chapel rather than a proposal extending to Klondyke Phases 2 and 3.

As appears from paragraph 26 of Laws LJ’s judgment, he appeared to leave open the question whether the issue, as to whether the “project” in that case was only the proposal contained in the application or included the prospective development as well, was an issue of law or one of judgment for the Secretary of State, and in the latter case what was the appropriate standard of review. When he came to address the question of the appropriate standard of review, it was in the context of the appellant’s ground of appeal which addressed “the proper scope of the required EIA” and appeared to be confined to the separate question as to whether, assuming that the project was confined to the proposal for which application was sought, the Secretary of State should have concluded that the larger scheme involved indirect, secondary or cumulative effects of the proposal for which permission was sought.

In that context he concluded that:

“I am inclined to accept Mr McCracken’s submission for the third respondents that the Court of Justice is of course concerned to see that the law is properly applied in the Member States, but in the present context that is achieved by the Wednesbury standards.

In the circumstances, I see no reason, even assuming it were open to us to do so, to seek to move the law from where it presently stands in this area. This, in any case, would not be the case in which to do so. [41]-[42]”

He had earlier said that it was strictly unnecessary for him to embark upon the debate about the appropriate intensity of review because he not merely acquitted the Secretary of State of a Wednesbury error but considered that, so far as the facts of the matter appeared to him, his conclusion was correct. [38] Having said that, he expressed the view that R (on the application of Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 R (on the application of Goodman) v Lewisham LBC [2003] EWCA Civ.140; [2003] Env. L.R.28 at [9]; R (on the application of Jones) v Mansfield DC [2003] EWCA Civ. 1408; [2004] Env. L.R.21 at [14] to [15] and R. (on the application of Blewett) v Darbyshire CC [2003] EWHC 2775; [2004] Env.L.R.29 at [32] and [33] all indicate that the conventional Wednesbury approach applies to the court’s adjudication of issues such as arose in that case, if he was right in holding that such issues are a matter of fact and judgment.

He added:

“40.

In R (on the application of Buglife: v Invertedrate Conservation Trust) v Medway Council [2011] EWHC 746 (Admin); [2011] Env. L.R.27, HH Judge Thornton QC opined that the courts might visit the question whether European Union law required them to apply a proportionate standard. For my part, I do not see that there is any true question of proportionality arising in the present case. We are not concerned with the exercise of a discretion and therefore we are not concerned with assessing whether a response to a particular aim is or is not proportionate. We are concerned with a fact-finding exercise. There is nothing, as it seems to me, in the jurisprudence of the Court of Justice to show that the conventional English law approach is inapt. Paragraph [48] of Ecologistas perhaps suggests, though I accept it does not state, the contrary. Paragraph [39] of Abraham v Region Wallone (C – 2/07) [2008] E.C.R. I-1197; [2008] Env. L.R.32, which is a screening not a scoping decision, does not in my judgment assist the appellants. Mr Drabble had relied in a supplementary Skeleton Argument on other authority of the Court of Justice. However Commission v Germany (C- 431/92) and Commission v Spain are infringement cases in which the Court of Justice must inevitably make all judgments of fact and law. Kraaijveld in the circumstances takes the matter no further.”

Laws L.J. had earlier rejected the appellant’s submission that the main question in the case, namely whether the Secretary of State should have concluded that the effects of larger schemes were cumulative effects of the smaller one for which permission had been sought was a question of law. He held that it was a matter of fact or of judgment.

He said that was clear from the judgment of Sullivan L.J. with whom Jacob L.J. and Sir Mark Waller agreed in the case of Brown v Carlisle City Council [2010] EWCA Civ. 523; [2011] Env. L.R. 5 at [21]. In that case Sullivan L.J. said in terms:

“[t]he answer to the question – what are the cumulative effects of a particular development—will be a question of fact in each case.”

Laws L.J. stated that it was also clear from the words of the Regulation itself: “Such information as it reasonably required” and “a description of likely significant effects”. Those formulations imported as it seemed to him the application of a measured judgment to the evidence. He stated that that was not contradicted by the learning which shows that the term “likely” in the Regulation means “possible”: see R (on the application of Bateman) v South Cambridgeshire BC [2011] EWCA Civ.157.

Laws L.J. held that whether or not the appellant was right to submit that European Union law requires a more intrusive judicial scrutiny of the Secretary of States’s assessment of the matter than is given by the conventional Wednesbury approach (which he concluded it did not) it must surely be the case that the views of the Inspector and the Secretary of State as the primary judges of fact are entitled to very considerable weight.

In rejecting the submission that the question whether the effects of the larger scheme are cumulative effects of the smaller is one of law Laws L.J. stated that it entailed a suggested rule to the effect, broadly, that in any case where it is intended to continue or supplant a limited scheme with a larger one, the effects of the latter are to be treated as the cumulative effects of the former. He stated that there was in his judgment nothing in either the 1999 Regulations or the 1985 Directive to suggest that the European Legislature or the domestic legislature implementing the Directive contemplated an approach that could be categorised by so rigid a rule. It seemed to him that the texts are all consistent with the proposition that what are and what are not indirect, secondary of cumulative effects is a matter of degree and judgment. [30].

Turning to the merits of the challenge to the Secretary of State’s conclusion that the larger scheme did not involve indirect secondary or cumulative effects of the proposal for which application was sought, Laws L.J. prefaced his findings with his observations which I have cited above that the approach in Kraaijveld Commission v Spain and Ecologistas cannot simply be read across to a case which is not about screening but rather about the appropriate scope of an EIA [32]. He added:

“33.

At the heart of the case, it seems to me, the proposition that the issues arising here are not comparable with those that arose in these screened decisions. In a case such as the present, as I have indicated, we are dealing with what is quintessentially a matter of judgment just as Sullivan J (as he then was) held was the case in relation to whether a park and ride scheme was an integral part of a larger scheme: see R (on the application of
Davies) v Secretary of State for Communities and Local Government [2008] EWHC 2223 (Admin).” [33].

Of course the second question which arises in this case, namely whether the Secretary of State erred in failing to consider whether there were any cumulative effects of the proposed demolition of the Chapel not taken in isolation but taken together with phases two and three of the Klondyke Development and if so to take them into account when deciding whether the proposed demolition of the Chapel was likely to have significant effect on the environment by virtue of factors such as its nature, size or location was not the same as that which the Court of Appeal was concerned in Bowen-West.

In that case the question arose in the context of deciding whether an Environmental Statement satisfied the requirement prescribed in paragraph 4 of Part 1 of Schedule 4of the 1999 Regulations that it should include, if it was reasonably required to assess the environment or effects of the development and if the developer could reasonably be required to compile it, a description of the likely significant effects of the development on the environment including any cumulative effects resulting from the existence of the development. By contrast in this case the question raised is whether the Secretary of State was required, in deciding whether the proposed demolition of the Chapel was EIA development requiring an EIA, to take into account the selection criterion prescribed in paragraph 1(b) of Schedule 3 of the 2011 Regulations, which provides that the characteristics of development must be considered having regard in particular to the cumulation with other developments. Whether he was so obliged turns in part on whether that criterion was relevant to the proposed demolition of the Chapel. (See Regulation 4(6).)

Nonetheless, and bearing in mind Laws L.J.’s conclusion that at least in the context of what are the cumulative effects of a particular development required to be included in an Environmental Statement, those are matters of fact and judgment for the decision taker, it is instructive to note the reasons and process of reasoning which led Laws L.J. to conclude that the Secretary of State’s decision in that case was not only Wednesbury reasonable but correct.

The Deputy Judge in Bowen-West had referred to the decision of Sullivan J, as he then was, in Brown v Carlisle City Council, in which Laws L.J. said that there was an inextricable link between the specific proposal for a freight distribution centre and the overall proposed development of Carlisle Airport by virtue of the effect of an agreement made under section 106 of the Town and Country Planning Act 1990.

Sullivan J had held:

“It was difficult to see how the commitment in the section 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 airport works part of the cumulative effects of the development for the purposes of 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 Regulation 3(2) of the 1999 Regulations.” [33].

Laws L.J. agreed with the observations of HH Judge Stephen Stewart QC, as he then was, sitting as a Deputy High Court Judge, distinguishing Brown v Carlisle. At [39] and [40] of his judgment the Deputy Judge said:

“39.

There is no doubt that the Brown decision (whilst clearly a scoping case) is distinguishable on its facts, since (paragraph 21) the section 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.

40.

In the present case, the permitted development 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).” [33].

Laws L.J. said that the Deputy Judge then referred to Ecologistas and Commission v Spain. He continued:

“34 I should next say a word about the effect of the grant of the present planning permission as a precedent, a “foot in the door”: an expression used by Sullivan LJ in Brown: see paragraph 39 of the judgment in that case. It is said it was a foot in the door for the larger intended scheme. As I have shown, the Inspector and the Secretary of State accepted that there would be some precedent effect.

35 The grant of planning permission may, in my judgment, be said to concede the principle of disposing of LLW on this site or adjacent to it, but only to the extent or on the scale allowed by the permission. If the larger application proceeds, the issue of disposal of LLW of the magnitude thereby contemplated will be open and undecided. It will certainly not be foreclosed nor in my judgment prejudiced by the current permission. It seems to me that the Secretary of State was entitled to conclude at paragraph 4 of the decision letter (which I have read) 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 Directive.”

It is noteworthy that if the larger scheme is in due course applied for, it will as a whole (including that part of it which is in effect the present scheme) be the subject of an EIA; and thereby it seems to me the purpose of the Directive will be fulfilled. In Commission v Spain, the court said this (paragraph 47):

“…the Directive's fundamental objective is that, before consent is granted, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a mandatory assessment with regard to their effects.”

That is precisely what will happen if the larger scheme is in due course applied for. The third respondent's case to the inquiry moreover included this passage accepted by the Inspector:

“2.5

The appeal proposal is not piecemeal development or a development which can only properly be considered as part of a larger whole, as alleged in NCC's additional reasons for refusal (a) and (b) … both of which have been rejected in the PINS ruling. It is not inevitably part of a more substantial development. If permitted, the development will be implemented regardless of the outcome of any further planning application. There is no cumulative or in-combination situation that would arise between the two proposals, even if any implementation of a subsequent permission occurred prior to the expiry in 2013 of the one now sought, which seems unlikely. In any event, the subsequent application would require assessment on the full effects of the extension to the landfill area and the extension of time for the already permitted area so that any cumulative effects would be considered then. At present, it is not possible to carry out that exercise.”

36 Given all these considerations and for these reasons, I for my part would acquit the Secretary of State of any Wednesbury error in judging that the EIA here need not encompass the third respondent's wider prospective scheme. I do not accept that the Inspector and the Secretary of State made, as is suggested, an impermissible leap from the view that this was a stand-alone project to the conclusion that, therefore, no EIA of the larger scheme was necessary. Account was taken of the relationship between the scheme in hand and the larger scheme; of the relevance of precedent; of the want of detail of the future scheme; of the fact that the current scheme could properly be dealt with on its own merits.

37 If one looks for a meaning of the term “indirect, secondary or cumulative effects”, it is perhaps worth emphasising that the grant of a further planning permission — here for the larger scheme — surely cannot of itself be such an effect. The putative “cumulative effects” on Mr Drabble's argument can only be what are the direct effects of the larger scheme itself or perhaps some effect factually arising from the current and larger scheme together. But all such effects would be examined if the larger scheme is gone into.

38 Thus I would not merely acquit the Secretary of State of a Wednesbury error. I consider, so far as the facts of the matter appear to me, that his conclusion was correct.”

Thus the following features all played a part in Laws L.J.’s conclusion that the Secretary of State did not err in the Wednesbury sense and was in fact correct. Unlike in Brown v Carlisle the permitted development could go ahead irrespective of the future proposals. It was thus a stand-alone proposal and not in truth one integrated development. Although the grant of the present planning permission would have some precedent effect by conceding the principle of disposing of LLW on the site or adjacent to it, that was only to the extent or on the scale allowed by the permission. If the larger application proceeded the issue of disposal of LLW of the magnitude thereby contemplated would be open and undecided. It would certainly not be foreclosed nor prejudiced by current permission. The permission would not frustrate the aims of the 1999 Regulations under Directive. If the larger scheme was in due course applied for it would as a whole including that part of it which was in effect the present scheme be the subject of an EIA. Thereby the purpose of the Directive would be fulfilled and the fundamental objective of the Directive, that before consent is granted, projects likely to have significance effects on the environment by virtue inter alia of their nature, size or location should be made subject to a mandatory assessment with regard to their effects would be fulfilled. That is precisely what would happen if the larger scheme was in due course applied for. The proposal was not piecemeal development or a development which could only probably be considered as part of a larger hole. It was not inevitably part of a more substantial development. If permitted, the development would be implemented regardless of the outcome of any further planning applications. There was no cumulative or in-combination situation that would arise between the two proposals. Any cumulative effects would be considered at the stage of the subsequent application which would require assessment on the full effects of the extension. At present it was not possible to carry out that exercise. Neither the Inspector nor the Secretary of State made an impermissible leap from the view that this was a stand-alone project to the conclusion that therefore no EIA of the larger scheme was necessary. Account was taken of the relationship between the scheme in hand and the larger scheme, of the relevance of precedent, of the want of detail of the future scheme and fact that the current scheme could probably be dealt with on its own merits.

Against that legal background I turn to address the Claimant’s submissions under the first ground of challenge. I deal first with the contention that the project which had to be assessed for screening purposes was the demolition and redevelopment of Phases 2 and 3 and not merely the demolition (with or without demolition) of the Chapel. (Paragraph 40 of the Statement of Grounds).

Although the description of the decision to be judicially reviewed in the Judicial Review Claim Form was an EIA screening direction that EIA was not required in relation to Klondyke demolition and redevelopment phases 2 & 3 as well as the demolition of the Chapel, the only remedy sought was an order quashing the screening direction that EIA was not required for the demolition of the Chapel.

There was no challenge to the legality of the Defendant’s decision dated 28 October 2011 that EIA screening on phases 2 and 3 was premature and, although the 6 January 2012 decision repeated the conclusion that a screening direction in relation to phases 2 and 3 was premature, the thrust of the Claimant’s challenge has been directed to that part of the decision, which was described in the letter as the Secretary of State’s “ formal decision”, which directed that the proposed demolition of the Chapel was not EIA development.

It is common ground that that decision, although when assessing whether the proposed demolition of the Chapel was likely to have a significant effect on the environment, it took into account the cumulative effects of phase 1, was confined to considering whether the proposed demolition of the Chapel, taken in isolation from Klondyke phases 2 and 3, was likely to have a significant effect on the environment.

In considering whether that approach was unlawful and whether it fell foul of the principles designed to prevent projects and developments from escaping from EIA by the device of salami-slicing, the following factors appear to me relevant.

First Mr Harwood did not challenge the legality of the Secretary of State’s decision that the proposed demolition of the Chapel taken on its own was not likely to have a significant effect on the environment. He accepted that he was entitled to reach that view.

Second, and related to the first point, at no stage before the 6 January 2012 decision did the Claimant allege that the demolition of the Chapel would have such an effect, identify reasons why it would or might have such an effect or respond to a specific request by Ms Lewis to do so.

Third the Secretary of State was in my view entitled to conclude that the Council intended, given its financial arrangements, to apply for approval for and to demolish the whole phase 2 and 3 Klondyke site together rather than in small phases. Although Mr Harwood submitted that that conclusion was not justified by the contents of the Council’s letter dated 24 October 2011, the Secretary of State’s conclusion to that effect in the letter dated 19 December 2011 was not challenged by the Claimant (to whom the Secretary of State sent a copy of the Council’s letter dated 24 October 2011) in its letter dated 20 December 2011.

More substantively in its letter dated 24 October 2011 the Council stated that it did not anticipate that there would be further demolition in Phases 2 and 3 until early 2014 (unless it was necessary before then to make structurally compromised properties safe) and that “ when” demolition was carried out in Phases 2 and 3 it would be based on a comprehensive method statement provided by the Council’s demolition contractor which would ensure that the impact on the wider environment was kept to an absolute minimum

The Council stated that the only demolition carried out recently within the Klondyke phases 2 and 3 re-development area were the properties known as 51-57 Springwell Road which had been identified as being in poor structural condition. In anticipation of demolition being required in order to make them safe a prior application had been determined on 24 March 2011. It had been determined without screening on the basis that at that time screening for EIA was not required for demolition projects relating to demolition of dwelling houses or buildings adjoining them. (The determination on 24 March 2011 preceded by one day the decision of the Court of Appeal in R (SAVE Britain’s Heritage) v Secretary of State to opposite effect). That application was the only one received for prior approval in the Phases 2 and 3 Klondyke re-development area and there were no current outline planning applications pending or permissions in place.

During the period between prior approval being granted and demolition the condition of those properties had been monitored closely. In early September 2011 it became apparent that the condition of those properties had deteriorated to the point where their structural integrity was in doubt and collapse was feared and therefore the properties had been quickly demolished to make them safe. The HMR team were currently preparing a prior notification application for the demolition of 1 to 6 Springwell Court and the Chapel but no application had been submitted.

The letter referred to the fact that the Adactus Housing Association owned a number of properties in the Phases 2 and 3 of the Klondyke estate and that given the constraints on the Council’s resources and following the cessation of dedicated HMR funding it had been agreed that instead of the Council buying Adactus property at market value which would cost it several million pounds, Adactus would hold an interest in its land which would be transferred to the Council’s lead developer partner or other developer at a later date for development for the value of that interest. It referred also to the licence agreement dated 7 January 2011 between the Council and Adactus permitting the Council to demolish properties owned by Adactus when it became necessary to do so. In the intervening period before any demolition was undertaken in the Phases 2 and 3 area the Council anticipated that the majority if not all of the remaining residents would have been re-housed.

The Council was thus in my view stating a clear intention to carry out demolition of phases 2 and 3 altogether as part of one exercise subject to any individual properties needing specific attention before then. Such demolition would require planning permission and, being over the 0.5 hectare threshold in column 2 of Schedule 2, would constitute Schedule 2 development. At that stage there would be nothing to stop the Claimant requesting a screening direction in respect of the whole of phases 2 and 3 even if, which there was no reason to anticipate, the Secretary of State did not make a screening direction of his own volition. Indeed that is the very point made by Ms Lewis in her letter dated 6 January 2012 when she wrote that the Claimant’s request to screen Phase 2 and 3 Klondyke demolition could be reconsidered at a later time and in the answer in Box 27 of the EIA Analysis when she wrote:

“It should be noted that once proposals are available for elements or the whole of phase 2 and 3 the Secretary of State can consider a screening direction regardless of whether the proposals meet the threshold of 0.5 hectares”

In my judgment the contents of that letter justified the Secretary of State’s conclusion in the letter dated 19 December 2011 that the Council’s intention was to apply for approval for and todemolish the whole site together rather than in small phases and that the demolition of the small number of properties in Springwell Road had only been carried out due to their dangerous conditions.

The Claimant did not support the allegation in its letter dated 13 December 2011 that the Council had a history of “Salami Slicing” the project to demolish 4.7 hectares of Victorian housing in order to avoid EIA. Although in its letter dated 20 December 2011 it cast doubt on the Council’s statement that the reason for the demolition of 51 – 57 Springwell Road was that the properties were unsafe, one of the arguments it deployed in support of that, namely that if it were genuinely the case that the buildings were unsafe the Council would not need to submit a prior approval application for their demolition, appears to have been incorrect as apparently accepted by Mr Harwood. In my judgment the Secretary of State was entitled to take at face value the Council’s detailed explanation for the reason why those properties were demolished.

I refer below to the specific issue of the reasons for the Council’s decision to apply to demolish the Chapel. As a general point however in my judgment the Secretary of State did not err in failing to conclude that the Council had been engaged in an exercise of salami slicing properties in the Phase 2 and 3 area for the purpose for avoiding EIA for the whole site and that its decision to demolish the Chapel and to issue a prior application notice in relation thereto was a part of that exercise and done for that purpose.

That is important. As Laws LJ said in Bowen-West, Commission v Spain and Ecologistas were examples of the type of case in which the courts have been energetically concerned to put a stop to the device of using piecemeal applications as a means of excluding larger developments from the discipline of EIA. I deal below with the question of whether the failure of the Secretary of State to treat Phases 2 and 3 as the project or development in relation to which he was required to give the screening direction had the effect of excluding Phases 2 and 3 (the larger development in this case) from EIA.

However even before considering the question of what were or were not the effects of the Secretary of State’s decision, if the conclusion which I have reached thus far is correct it distinguishes this case from the cases referred to by Laws LJ at the earlier stage of holding that it is not a case in which a piecemeal application or applications were used as a device as a means of excluding a larger development from the discipline from EIA.

Fourth, irrespective of whether the proposed demolition of the Chapel should have been considered to be part of a wider project for the demolition and/or redevelopment of Phases 2 and 3, neither the decision of the Council to demolish the Chapel (and issue a prior application notice) on its own and before proceeding with Phases 2 and 3 nor the decision of the Secretary of State to treat the proposed demolition of the Chapel as a discrete development rather than as a part of a wider phase 2 and 3 development, had the effect of enabling either the demolition of the Chapel or the demolition and/or redevelopment of Phases 2 and 3 to escape the ability of the Secretary of State to make a screening direction that it was likely to have a significant effect on the environment and was thus an EIA development requiring, as a condition of planning permission, the submission of an Environmental Statement.

This is the second respect in which the case does not offend the principle which, as held by Laws L.J. in Bowen-West, the courts have been energetically concerned to promote in the salami slicing cases such as Commission v Spain and Ecologistas, namely to ensure that larger developments are not excluded from the discipline of EIA as a result of the use of piecemeal applications. [32]

As regards the demolition of the Chapel, the fact that it fell below the 0.5 hectare condition specified in Column 2 of paragraph 10(b) of Schedule 2 of the 2011 Regulations did not prevent the Secretary of State from having the legal power to make a direction under Regulation 4(9) that it was EIA development. He had that power, he was asked by the Claimant to exercise it and he duly proceeded to consider whether the merits of the case justified exercising it. In his formal reasons for his decision not to make such a direction he did not suggest that he had no jurisdiction to make it, but merely that he did not consider on the evidence before him that it would have a significant effect on the environment. That is a very different thing.

In that critical respect this case differs from the cases referred to the ECJ in which the concern was that the fact of being considered in isolation from the larger project meant that the smaller sub-project or section might escape EIA by failing to meet the description in the relevant part of Annex I of the 1985 Directive which would have made EIA mandatory or the threshold in Schedule 2 of the domestic regulation which would have enabled the Member State to consider whether there should be EIA.

In addition, in considering in due course whether Phase 2 and 3 development was EIA development the Secretary of State would be entitled to take into account as one of the criteria the cumulation of phases 2 and 3 with the demolition of the Chapel.

This is not a case in which, even if the Phase 2 and 3 project was split into successive shorter sections, that had the effect of excluding from the requirement of the Directive “both the project as a whole and the sections resulting from that division” (Commission v Spain at [53]). Nor would “the failure to take account” of the cumulative effect of several projects… mean in practice that [both the proposed demolition of the Chapel and any Phase 2 and 3 Klondyke project] escape the obligation to carry out an assessment when, taken together, they are likely to have significant effect on the environment within the meaning of Article 2(1) of the amended Directive” [Ecologistas at [39]].

The proposed demolition of the Chapel has already been subject to a screening direction and there is no reason to suppose that the same will not be true of Phases 2 and 3 of Klondyke. Moreover the latter when it occurs will be entitled to take account of the effect of the demolition of the Chapel together with the effect of Phases 2 and 3.

It follows that if, taken in isolation from the demolition of the Chapel, Phases 2 and 3 would not be likely to have a significant effect on the environment but they would do so if taken together with the demolition of the Chapel, it would still be open to the Secretary or State to direct that Phases 2 and 3 are EIA development with the effect that there could be no planning permission for Phases 2 and 3 without environmental information having first been taken into account (see Regulation 3(4)).

In reality on the material before me there is nothing to suggest that that scenario, while theoretically possible, was likely to occur in practice. In support of its assertion that the proposed demolition of the 483 properties in Klondyke Phases 2 and 3 was likely to have significant effect on the environment the Claimant in its letter dated 8 September 2011 drew attention in great detail to ten separate matters, which did not include any alleged effects on the environment of the demolition of the Chapel and indeed none of which even referred to it.

Nonetheless, unlikely though such a scenario may be, if the demolition of the Chapel was the factor which made the difference between Phases 2 and 3 not being considered by the Secretary of State to be EIA development and being considered to be EIA development, the fact that there had been a screening direction in respect of the Chapel before a screening direction in respect of Phases 2 and 3 would not prevent the Secretary of State from determining that Phases 2 and 3 were EIA development and would not prevent planning permission for Phases 2 and 3 from being impermissible without the environmental information having been taken into account (Regulation 3(4)). Any attempted salami-slicing on the part of the Council would thus have been ineffective in protecting Phases 2 and 3 from proper screening.

It is of course true, as Mr Harwood pointed out, that if the Secretary of State was under an obligation to treat the development before him in December 2011 as part of a wider Phase 2 and 3 Klondyke development, there would remain a theoretical danger flowing from his failure to do so which would not be covered by the points which I have listed above. That danger would arise if instead of the demolition of the Chapel making the difference to phase 2 and 3 being EIA development or not it was the other way round: in other words if the factor which made the difference between the Secretary of State considering that the demolition of the Chapel was not likely to have a significant effect on the environment and considering that it was likely to do so was if Klondyke phases 2 and 3 were to proceed. In that eventuality if the consequence of the Secretary of State leaving out of account at this stage the effect of phases 2 and 3 was that the Chapel was demolished, it would be too late to retrieve the position when the two developments were considered together as part of a subsequent screening directive in relation to phases 2 and 3.

Again in my judgment this is a theoretical rather than a realistic possibility based on the material before me. As already mentioned at no point did the Claimant allege that the wider Phase 2 and 3 development would or even might make the difference between the demolition of the Chapel not having an adverse effect on the environment and having such effect. Indeed it did not at any stage allege that the demolition of the Chapel would have any adverse effect on the environment either taken on its own or in combination with the rest of Phases 2 and 3.

I would observe in passing that in Bowen-West one of the reasons why Laws LJ acquitted the Secretary of State of any Wednesbury error in judging that the EIA in that case did not need to encompass the developer’s wider prospective scheme was the Inspector’s finding that the subsequent application for planning permission in respect of the wider scheme would require assessment of the full effects of the earlier scheme under consideration “so that any cumulative effects would be considered then. At present it is not possible to carry out that exercise.” [35]

Laws L.J. was not deterred from reaching that conclusion by the consideration that by the time the later wider scheme came to be subjected to EIA, the earlier scheme would already have been implemented and thus would have been a fait accompli which an adverse finding as to the cumulative effect of the two schemes taken together at the subsequent stage would be powerless to undo.

I recognise of course that Laws L.J.’s conclusion was reached in the different context of interpreting and applying the criterion of “cumulative…effects of the development resulting from the existence of the development” in the 1999 equivalent of paragraph 4(a) of Part 1 of Schedule 4 of the 2011 Regulations which identifies some of the information for inclusion in environmental statements.

Further, as I have pointed out more than once, Laws L.J. was at pains to point out that the approach of putting a stop to the device of using piecemeal applications as a means to excluding larger developments from the discipline of EIA in screening cases cannot simply be read across to a case which is not about screening at all, but rather about the appropriate scope of an EIA. For all that, in my judgment Laws L.J.’s conclusion is not without significance in the current context.

The reality is that the Claimant’s concern, as manifested in its letters to the Secretary of State, appears to have been quite different. It appears to have suspected that the Council was deliberately demolishing properties in the Phases 2 and 3 area in stages so as to avoid Phases 2 and 3 being subjected to EIA. Its initial request for a screening direction on 8 September 2011 was in relation to Phases 2 and 3 and did not mention the Chapel.

The Claimant’s initial response to the prior approval applications in respect of the Chapel was not to request a screening direction in relation to it but rather to use them as further evidence of the Council’s alleged history of “salami-slicing” the project to demolish 4.7 hectares of Victorian house in order to avoid EIA, in support of a request to the Secretary of State to reconsider his decision that screening in relation to Phases 2 and 3 was premature- see its letter dated 13 December 2011.

Similarly it is in my judgment significant that the Claimant did not explain why the demolition of the Chapel alone, which had not been included in its first request for a screening direction in the 8 September 2011 letter, needed EIA. Instead in its letter dated 20 December 2011 the significance which the Claimant appeared to attach to the proposed demolition of the Chapel was the implication that it was further evidence that the Council was carrying out demolition in a piecemeal fashion contrary to the requirements of the Directive:

“If the Council is serious about not commencing demolition in a piecemeal fashion and contrary to the requirements of [the Directive] it will make a planning application for the demolition at the appropriate time to include the whole of the phase 2-3 site…

We therefore repeat our request that given the recent applications for prior approval referred to above, and the Council’s history of “salami slicing” the project to demolish 4.7 hectares of Victorian housing in order to avoid [EIA] the Secretary of state please reconsider his decision as a matter of urgency. That decision of course was the decision on 28 October 2011 that screening was premature in relation to phases 2 and 3.”

Although the letter stated “ for the avoidance of doubt” that the Chapel did “now” form part of the Claimant’s screening direction request, that request was only made in response to a request for confirmation from the Secretary of State as to whether the Chapel was or was not intended to be included in the renewed request for screening.

It is in my view telling that in the 20 December 2011 letter the Claimant did not submit that, when considering the screening direction in relation to the proposed demolition of the Chapel which it was belatedly requesting the Secretary of State to make, he should treat that part of its screening request as in effect a screening request in relation to Phases 2 and 3 on the basis that the former was an integral part of the latter. That argument appears to have been an after thought after the screening direction determined that the former was not EIA development.

In all these respects in my judgment this case is materially distinguishable from the ECJ cases on salami-slicing. In my judgment the cumulative effect of the matters to which I have referred argues strongly against the Claimant’s submission on the first contention. However it is in my judgement supported further by the following matters.

The Claimant’s first contention is based on the premise that, although the development in respect of which the Council had issued a prior application notice and the Claimant sought a screening direction was the proposed demolition of the Chapel, in truth it was the phases 2 and 3 Klondyke development, of which the demolition of the Chapel was merely a small part. Accordingly the project which had to be assessed for screening purposes was the demolition and redevelopment of Phases 2 and 3.

It is not in my view easy to distil from the authorities which I have reviewed a series of simple propositions of universal application which provide in themselves a ready answer to the question whether that proposition is valid. In my judgment however the effect of the authorities does not support the premise.

The cases of Commission v Spain, Ecologistas and Karnten were cases in which the project under consideration was an integral part of a larger project in at least two respects. First in each case the larger project when conceived included the smaller project as one of at least two and mostly more sub-projects. Although for administrative convenience the larger project was divided into smaller sub-projects the sub-projects were always all going to be part of the bigger projects.

Second the smaller project was in each case an essential component of the larger project which was dependent on it for its rationale if not its existence. In Commission v Spain the 251 kilometre railway line between Valencia and Tarragona could not function without the 13.2 kilometre section under consideration. In Ecologistas the Madrid ring road could not function as a ring road without the sub-projects under consideration. In Karnten the power line running between Austria and Italy could not function without that section of it which was to be built in Austria.

It was those features which led in each case to the observations and conclusions of the ECJ and Advocates-General. At least one if not both of those features was not present in this case.

It could not be and was not suggested by the Claimant that the demolition and redevelopment of Klondyke Phases 2 and 3 were dependent on the demolition of the Chapel. They could proceed with or without the demolition of the Chapel. Moreover the demolition of the Chapel was not a part of Klondyke Phases 2 and 3 from the outset.

The SPG of July 2004, which identified three phases in the Klondyke phased development programme, units to be cleared and sites identified for re-housing, referred to the Chapel as an existing landmark which should be preserved.

Mr Lunt in his narrative of events stated that on 1 May 2008 the Chapel was sold to a property development company and that as late as 2009 the Council held discussions with various community and faith groups who might be interested in occupying it. There is no reason to suppose that Mr Lunt was lying about those events which show that even at that comparatively late stage the demolition of the Chapel did not form any part of phases 2 and 3 of Klondyke demolition and redevelopment plans.

The Claimant took serious issue with the rationale for the demolition of the Chapel advanced by Mr Lunt which it said ignored some of the Council’s own documents. That rationale was that, following the failure of the search for alternative users of the Chapel and subsequent arson attacks which led the Council’s deputy building control manager to report that it was dangerous, with no resources to restore the badly damaged building and no long term use or occupier identified for it, the Council decided that the best course of action was to purchase it and apply to demolish it and ultimately incorporate the site into Extended Public Open Space. After it was acquired by the council in 2011 it was again broken into twice, most recently on 8 December 2011. Being relatively isolated and bounded on the one side by open space which was a focus for antisocial behaviour in the area and on the other sides by empty properties it was thus particularly vulnerable to break ins and arson attacks because there was little natural surveillance.

None of the documents relied on by the Claimant in my judgment showed that Mr Lunt’s narrative of events cannot have been or was unlikely to have been true. The November 2004 Development Brief long preceded the acquisition of the Chapel by the property company and the subsequent search for other users. The suggestion in the October 2005 Communities Facilities Study that the SPG stated that the Chapel’s future was for eventual demolition was inconsistent with the terms of the SPG which I have referred.

Mr Harwood’s submission that the Council’s assertion that the proposal to demolish the Chapel was due to its condition rather than as part of the strategy for the area was incredible in my view did not do justice to what Mr Lunt said in his witness statement. He did not say that the proposal to demolish the chapel was not part of the strategy for the area. What he said was that the decision had nothing whatsoever to do with avoiding the need to carry out an EIA. That is a very different thing. As I have found, there is in my view no evidence to support such a suggestion and certainly none which would render irrational a failure to conclude that that is what happened. Nor in my judgment is there anything in the documents to render incredible Mr Lunt’s statement that faced with a badly damaged building in a regeneration area which was purchased by a developer who could not make an alternative scheme work and with no available funding or long term use it was decided to pursue demolition and that the Council’s view was that given its type, size and condition, as well as its location it was not economically viable to refurbish the building and bring it back into use.

Mr Harwood’s better point as it seemed to me was that Mr Lunt’s statement that by March 2011 the Council had decided to demolish the Chapel and incorporate the site into the public open space proposed when the housing was demolished showed that by that stage at the latest the demolition of the Chapel was part of the wider demolition project. Indeed the reason given for the demolition, namely that “ the building is part of the Housing Market Renewal Initiative” in the Council’s prior notification application supports the proposition that by that time it may have been viewed internally at least by some in the Council as part of a wider programme.

However if that is so it was a very late entry. It was plainly not an essential part of phases 2 and 3 which did not depend on it, as can be seen from the fact that there is no suggestion that phase 2 and 3 would have been impossible or even disadvantaged if alternative users for the Chapel had been found in 2009. Nor was it a part of Phases 2 and 3 until a comparatively late stage and for reasons that were independent of the nature and purpose of Phases 2 and 3. This is a very far cry in my view from a section of a ring road, a long distance railway line linking two towns and a single power line which happened to cross the border between two countries.

It is in my judgment important when analysing the Claimant’s submissions and the authorities relied on by both sides to keep well in mind that two separate questions arise and that they need to be answered separately. First which is the project or development in respect of which the Secretary of State was obliged to give a direction as to whether it was or was not likely to have significant effects on the environment? That is the first question to be answered and is the question I am seeking to answer at this stage. The second question is whether, when assessing whether the relevant project or development was likely to have a significant effect on the environment, the Secretary of State erred in failing to take into account any cumulative effects of Phases 2 and 3?

In my judgment the observations of Advocate General Gulmann in Bund Naturschutz in Iron Bayern, the dicta of Simon Brown J in Swale, the decision and observations of Davis J in Candlish and the decision of the Court of Appeal and the observations of Laws LJ in Bowen-West provide strong support for Mr Forsdick’s submission that the answer to the first question that the project or development in relation to which the Secretary of State was obliged to give a screening direction was the proposed demolition of the Chapel and not any future demolition and/or redevelopment of Phases 2 and 3.

In Bund Naturshutz the Advocate General was of the view that it was not possible to interpret the 1985 Directive to the effect that it makes EIA mandatory for anything other than the specific projects submitted by developers to the competent authorities in order to obtain authorisation to carry out construction or other works even if the actual application only relates to one part of a longer road link, which, as normally happens in practice, is to be constructed in stages. The principle underlying the 1985 Directive was unambiguous: an EIA is to be carried out for projects in respect of which the public or private developer is seeking development consent. [67][68]

In Swale Simon Brown J’s answer to the first question which he addressed was:

“…the question whether the development is of a category described in either schedule must be answered strictly in relation to the development applied for, not any development contemplated beyond that.” [68]

In Candlish Davis J agreed with Simon Brown J’s observations, including as I read his judgment, his answer to the first question. Indeed he considered that they were as much applicable to the 1999 Regulations as to the 1988 Regulations (which are materially the same as the 2011 Regulations). He also said that although he was not strictly bound by them they were on any view highly persuasive and had been frequently cited in the planning field and in the intervening years had been applied by planning authorities and he doubted whether it would be right not to follow them even if he had disagreed with them. [68][69][70][71]

As mentioned earlier Davis J described the issue involved in the principal point in the case as being whether, where an application for planning permission is for a development which, taken on its own by reference to the application, would not require an assessment of the likelihood of significant effects on the environment, such an assessment is nevertheless required if at the time that development is prospectively part of a wider development. [1].

One of the claimant’s submissions which he rejected was that there was in substance an application for a wider project than simply the spine road and that because that wider project involved an area of development clearly exceeding any applicable threshold it called for EIA.

Davis J rejected that submission notwithstanding his findings that the evidence showed that no application would have been made for the Phase 1 development were it not for the proposals with regard to the Phase 2 development and that the spine road had no function without further development. (I observe that in that respect the facts were more favourable to the claimant than they are in this case where there was evidence that the Council would have applied to demolish the Chapel even if there had not been the prospect of Phases 2 and 3 ultimately being implemented and that the demolition of the Chapel had a function without the demolition and redevelopment proposed for Phases 2 and 3. That function was to address the problem posed by a derelict building which was subject to repeated arson attacks, which it was economically unviable to refurbish and bring back into use and the retention of which would be expensive and difficult to monitor and was not justified by any prospect of alternative use in the event of rebuilding.)

Moreover in Candlish the development under consideration had been explicitly admitted to be phase 1 of a 2 phase proposal.

In rejecting the Claimant’s submission Davis J held that it was plain that the 1999 Regulations were geared to the actual application for development consent and that that was a legitimate approach for a Member State to adopt seemed to him to be indicated by the definition of “development consent” and the references thereafter to such consent in the amended 1985 Directive. He also held that that accorded with the observations of the Advocate-General in Bund Naturschutz to which I have referred. In his view there was no justification for treating the word “development” as used repeatedly in the 1999 Regulations as though it meant “project” of some wider kind and the Regulations were clear that the relevant assessment was to be made by reference to the application for planning permission.

As I have mentioned earlier although he added that were it otherwise there could be difficulties in any given case in assessing just what “project” might be involved or, even if there was some wider project in mind, just what form it might take and that those were precisely the considerations alluded to by the Advocate-General in Bund Naturschutz, he qualified that by saying that he would not perhaps give quite so much emphasis to that particular point as did counsel for the defendants. That was because if there was a Schedule 2 development (as defined) the planning authority in deciding whether such development was EIA development (under regulation 4(5)) had to do the best it could in assessing, for example, cumulation implications.

Nonetheless he considered that the instant case illustrated the practical difficulties potentially involved in the Claimant’s argument. If the application had to be treated in some way as an application for the wider project, that posed difficulties for the assessment said then to be required, because even if there was a probability that there might be some eventual wider project there could be no certainty at all as to what eventual size and form (e.g. in the mix of housing, shops and offices etc) might ultimately take or be permitted to take assuming application for that project was granted at all.[61].

In Bowen-West the Court of Appeal rejected the claimant’s alternative case that the “project” which the inspector and Secretary of State had to consider and which fell to be assessed “under the Directive obligations” was not the proposal for which the third respondents sought planning permission but rather the larger scheme for which they had not yet applied for permission. [9][21]

There were three reasons why the alternative case was rejected. First Laws LJ saw no reason to disagree with the conclusion of the Inspector and the likely conclusion of the Secretary of State that the former proposal was “a stand alone proposal which can be and is being considered on its own merits”. That was so despite the fact that the third respondent’s intention had been to achieve a continuing facility for waste disposal effective without interruption until 2026.

The second reason was that Laws L.J. held that the judge was clearly right to hold that the former proposal, i.e. the permitted developments, could go ahead irrespective of the future proposals. That had been the finding of the inspector who said that this was a “stand-alone proposal”. It was not in truth one integrated development such as the Carlise Airport development in Brown or the Madrid ring road project in the Ecologistas case or the Mediterranean corridor railway project in Commission v Spain.

(I observe that in Ellson Burton J with whom Moses LJ agreed, held that the mere fact that the demolition of the wharf would make it easier if the planning permission for the redevelopment of the site was subsequently granted for that development to be carried out did not mean that the demolition was properly to be regarded as an integral part of an inevitably more substantial development. Moses LJ in refusing permission to appeal pointed out that the evidence was that it was the intention of the developer to carry out the demolition whether the planning proposal for the development went ahead or not. [11].)

The third reason was that the inspector stated that at present there were no details of any future proposals. Although that statement had been challenged and clearly there was a degree of information about the overall intended scheme given in evidence to the enquiry, in Laws L.J.’s judgment the inspector had been perfectly entitled to state that there was a want of details.

All those considerations in Laws L.J.’s judgment pointed to what he regarded as an inescapable conclusion that the “project” in that case was only the proposal contained in the July 2009 application. As previously mentioned he stated that he would so conclude whether the issue was one of law or one of judgment for Secretary of State and in the latter case whatever was the appropriate standard of review. [24][25][26].

Although of course those reasons depended in part on the facts of the case, in my judgment they were based on principles of wider application. Those principles appear to me to have included the following. The following factors point to the project which falls to be assessed “under the Directive obligations” being that for which authorisation is sought and not some wider scheme.

First the fact that it is a stand alone proposal which can be and is being considered on its own merits. That is not inconsistent with an intention on the part of the developer to achieve a wider scheme in the future. Second the fact that the project or developments for which permission is sought can go ahead irrespective of the future wider proposals. That is to be contrasted with a development which is in truth one integrated development with a wider existing or future scheme. Third the absence of details of any future proposals.

As already mentioned, although the main argument relied on by the claimant in that case involved the adequacy of the content of the environmental statement supplied, which of course arises at a later stage than that with which I am concerned in this case, namely the assessment as to whether the project is EIA development, the alternative case to which I have just referred which was rejected by the Court of Appeal was, as I understand it, directed to a question equally applicable at this stage, namely the identity of the project which falls to be assessed “under the Directive obligations”[21]. In my judgment Laws L.J.’s conclusions and the principles on which in my view they were based are of relevance in the current context.

I did not understand Mr Harwood to submit that the question whether the factors to which Laws L.J. referred do not apply in a particular case was other than a question of fact. I have referred earlier to what Laws L.J. said on this topic.

In Bund Naturschutz the Advocate-General considered that the question is answered by reference to the terms of the Directive and that the answer is that the project is that in respect which development consent is being sought. In Candlish Davis J considered that the question was to be answered by interpreting the 1999 Regulations and that answer thus produced was that the relevant assessment is to be made by reference to the application for planning permission.

In my judgment the Secretary of State did not err in treating the project or development in relation to which he was obliged to make a screening direction as being the proposal to demolish the Chapel for which the Council had issued a prior application notice. As did Laws LJ in Bowen-West I reach that conclusion whether the question is one of law or fact and, if the latter, whether it is one for the Secretary of State subject only to judicial review or for the court.

The opinions expressed by the Advocate-General in Bund Naturschutz ,the dicta of Simon Brown J in Swale and the decision and observations of Davis J in Candlish preceded the ECJ cases of Commission v Spain, Ecologistas and Karnten. There are arguably some differences in approach between the former and the latter. It is however in my judgment striking that in Bowen-West Laws LJ ,who had at least the first two of those ECJ cases very well in mind, plainly did not consider that there was anything in them inconsistent with the principles by reference to which he rejected the appellant’s alternative case.

Like Laws LJ in Bowen-West I do not accept that the relevant project here was the whole prospective Phases 2 and 3 demolition and redevelopment. Mr Forsdick accepted that the Council had identified the Chapel as within Phases 2 and 3 in its letter dated 24 October 2011 and that the reason given to the Council for the demolition was that it was part of the HMR.

However it does not in my judgment follow from either of those facts that the relevant project which fell to be assessed on the Council’s prior notification application to demolish the Chapel and the Secretary of State’s screening direction was the Phases 2 and 3 Klondyke plan. The proposed demolition of the Chapel could be and was being considered on its own merits and that was notwithstanding the fact that the Council intended to proceed with Phases 2 and 3 some time after early 2014. The proposed demolition of the Chapel could go ahead irrespective of the future plans for Klondyke Phases 2 and 3. It was a stand alone proposal and not one integrated development such as the Carlisle Airport development in Brown, the Madrid ring road project in Ecologistas or the Mediterranean corridor rail project in Commission v Spain.

Mr Harwood submitted that whether the demolition of the Chapel could take place irrespective of future proposals for the wider area was irrelevant when the demolition was part of a wider project. It would have been no answer in Ecologistas to say that a road could have been built as a stand alone scheme in Madrid when it was in fact part of a proposed ring road. I do not accept that submission which in my judgment is inconsistent with Laws LJ’s second reason for rejecting the argument that the project was not the proposal for which application had been made even though it was part of the intended larger scheme in the case. Indeed Laws LJ specifically contrasted the fact that the permitted developments in Bowen-West could go ahead irrespective of the future proposals with his description of the Madrid ring road project in Ecologistas as being in truth one integrated development.

Mr Harwood submitted that the timing of the demolition might have been brought forward because of the Chapel’s condition but that the demolition was still part of the HMR programme. Mr Forsdick accepted that if prior notice applications were being granted a street or a block at a time without site/building specific reasons as part of a rolling programme of demolition pursuant to a comprehensive scheme the facts would be analogous to the salami slicing cases. But that was not this situation. I agree.

Mr Forsdick’s example is a good illustration of the difference between this case and the salami slicing cases. In this case there was neither evidence of a deliberate splitting up of a single project into smaller sections for the purpose of avoiding EIA nor was EIA avoided either for the demolition of the Chapel or for the subsequent Phases 2 and 3 demolition and redevelopment by reason of the Council applying to demolish the Chapel in advance of Phases 2 and 3. That decision did not prevent the Secretary of State from considering on its merits the question whether the demolition of the Chapel was likely to have significant effects on the environment and, had he decided that it would, making a direction to that effect. Nor would it prevent the Secretary of State in due course from considering whether Phases 2 and 3, if necessary in cumulation with the demolition of the Chapel, would have such effects and, if he decided that they would, making a direction to that effect.

Mr Harwood submitted that none of the material supports the Secretary of State’s proposition that the demolition was a separate and independent proposal, that there is no evidence that demolition would have been proposed if the site had not been included in HMR programme and that any conclusion that it was an independent project was irrational in the light of the evidence and the conclusion in the screening analysis that the demolition of the Chapel would facilitate the redevelopment of the area for housing in accordance with the Development Brief and the SPG. I do not accept that submission.

In my view it ignores the significance of the Council’s letter dated 24 October 2011 and the AMEC bat report. The former indicated that it was not anticipated at that stage that further demolition would be carried out in Phases 2 and 3 until early 2014 unless demolition was necessary before then in order to make structurally comprised properties safe. Although it was not specifically stated that the proposal to demolish the Chapel was for the latter reason in my judgment it was the clear and obvious inference both from the general statement that any demolition before 2014 would only be carried out if necessary to make structurally compromised properties safe and also from the explanation that the only other prior notification applications currently being prepared were in respect of the property in 51-57 Springwell Road which had been identified as being in poor structural condition and in respect of which the prior notification applications were determined in anticipation of demolition being required in order to make them safe.

The AMEC bat report supported that clear inference with its references to the Chapel having been identified as requiring immediate demolition “as it is derelict and presents a health and safety risk” and as being in a “severely dilapidated state, having been subject to numerous arson attacks… [having] a strong smell of bird guano associated with pigeon droppings” and the roof having largely collapsed as a result of vandalism and being only partially intact.

The rationale of the Council’s Housing Market Renewal programme of which Klondyke phases 1, 2 and 3 were a part was said in the Council’s letter dated 24 October 2011 to be that re-development had been adopted as the preferred option to arrest the decline of the area. That redevelopment was to involve demolishing large numbers of houses and replacing them with new high quality homes and open spaces.

That is in my judgment a wholly different scheme or plan with a wholly different rationale to the proposal to demolish four houses in Springwell Road and the Chapel in December 2011 because they were structurally unsafe or unsound and dilapidated. The fact that they were in the Phases 2 and 3 area, or in the language of the Claimant’s letter dated 20 December 2011, the fact that the Chapel was “to all intense and purposes...within the clearance area for phases 2-3” does not alter that.

In fact the position described above was subsequently confirmed by Mr Lunt in his witness statement. Although that witness statement was not available to the Secretary of State when he made his decision dated 6 January 2012 it would be surprising, although of course not impossible, if a conclusion which turned out to be correct based on that evidence was an irrational one.

The submission that there was no evidence that demolition would have been proposed if the site had not been included in the HMR programme is inconsistent with Mr Lunt’s evidence. If either the developer which bought the Chapel in 2008 had not encountered covenants which prevented it from developing the site or the Council had succeeded in finding alternative uses and occupiers for the Chapel in 2009 it is clear that the Council would not have applied to demolish it.

The initial decision to purchase and apply to demolish the Chapel was taken as the best course of action prior to March 2011 because the Council had no resources to restore the badly damaged building and no long term use or occupier identified for it. It was subsequently decided to pursue the demolition of the building in order to remove the risk and blight posed by the damaged Chapel because it was the Council’s view that given its type size and condition as well as its location it was not economically viable to refurbish the building and bring it back into use. No organisation had submitted a business plan to the Council setting out how the Chapel could be viably refurbished. All that in my judgment is very far removed from the proposition that the demolition was only proposed because the site was in the HMR programme. The fact relied on by Mr Harwood that the building was unlikely to have got into the condition it did if the area was not being vacated for demolition does not seem to me to advance his argument. The submission that it was unlikely to have got into that condition if the Chapel had not been acquired for the purpose of demolition is not borne out by Mr Lunt’s narrative of events. The arson attacks to which the Chapel was subject began in August 2008 and continued through 2010 before the decision to purchase the Chapel was taken by the Council.

Ms Lewis’ observation in the EIA analysis that the demolition of the Chapel and other buildings in the vicinity would facilitate the redevelopment of the wider site and that the proposal to demolish the Chapel would facilitate the eventual redevelopment of the area for housing as set out in the Development Brief and SPG is not in my view inconsistent with the proposal to demolish the Church being treated for screening purposes as a stand alone proposal. It did not mean that for that reason the demolition of the Chapel was one integrated development with Phases 2 and 3 such as the Carlisle Airport development in Brown.

As to Laws LJ’s third reason, that the Inspector was perfectly entitled to state that there was a want of detail of any future proposals, the Claimant did not challenge the Secretary of State’s decision dated 28 October 2011 that the Claimant’s request for screening in relation to the demolition of phases 2 and 3 of Klondyke was premature. The reason given for that decision in that letter was not just, as submitted by Mr Harwood, that there had not yet been submitted or prepared an application for prior approval for demolition of phases 2 and 3 but also and particularly the fact that there was no specific future identified use for the site.

Mr Harwood pointed out that the SPG set out the phases and number of properties to be demolished and constructed with details provided in the SPG and the Development Brief, and that the transitional fund bid updated the figures for demolitions and new properties. He also pointed out that the 24 October 2011 letter said that the unit would be houses rather than flats and provided details on some environmental issues.

While I see the force of those points it remains the case that the Secretary of State concluded that there was insufficient information to warrant a screening direction in respect of the demolition phase of Phases 2 and 3. Phases 2 and 3 of course were not confined to demolition but included proposed redevelopment. If there was insufficient information to justify a screening direction in respect of Phases 2 and 3 demolition it does not seem to me irrational to conclude that there was insufficient information to lead to the conclusion that for screening purposes the relevant project which fell to be assessed was not the proposed demolitionof the Chapel but the wider Phases 2 and 3 of which it was said to form an integral part.

Mr Harwood further submitted that if future parts of a project had to be worked up to the point that an application could be made for them before they could be considered in a screening process then the intention of the Directive as explained by the cases to avoid the splitting of projects would be frustrated. Consideration of the effects of the whole project would not arise until details of the last stage had been provided. Simon Brown J’s dicta concern a forward-looking exercise (the smaller development promoting the larger one).

As to that first in my judgment the Secretary of State was not, as implied by Mr Harwood, asserting an inflexible legal rule but rather making a decision on the facts of the case before him, as can be seen from the fact that he also relied on the absence of a specific future identified use for the site. Second in my view Mr Harwood’s submission confuses the two distinct questions of (1) what is the project which falls to be assessed and does it include a wider scheme of which the project under consideration is alleged to form a part? And (2) once the relevant project has been identified does the Secretary of State have an obligation in considering whether it is likely to have a significant effect on the environment to take into account the cumulative effects on the environment of a wider project of which the project that falls to be assessed is alleged to be a part? The dicta to which Mr Harwood was referring were in the context of the second question and not the first.

The first question which Simon Brown J addressed in Swale, namely whether the development is of a category described in either schedule, he held must be answered in strictly in relation to the development applied for and not any development contemplated beyond that. His dictum that the proposal should not be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development was addressed to what he described as the further question arising in respect of the Schedule 2 development, namely whether it would be likely to have significant effects on the environment by virtue of factors such as its nature size or location which he said should be answered rather differently.

It was in that context that he said that the approach of not considering the proposal in isolation subject to satisfaction of the condition which he specified appeared to him appropriate on the language of the regulations, “the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter.” It was in that context that he said that in common sense developers could otherwise defeat the object of the regulations by piecemeal development proposals. (Page 41 of the J.P.L report cited by Davis J in Candlish at [68].)

For all these reasons in my judgment the answer to the first question is that the project or development in respect of which the Secretary of State was obliged to give a direction as to whether it was or was not likely to have significant effects on the environment was the proposed demolition of the Chapel and not Phases 2 and 3.

I now turn to the second question namely whether, when assessing whether the relevant project or development, which I have held to be the proposed demolition of the Chapel, the Secretary of State erred in failing to take into account any cumulative effects of Phases 2 and 3.

Assuming that my answer to the first question is correct, the question which the Secretary of State had to decide in making his screening direction was whether the proposed demolition of the Chapel was EIA development, that is to say development “likely to have significant effects on the environment by virtue of factors such as its nature, size or location.” (See the definition of EIA development in Regulation 2(1)).

As mentioned he was not prevented from directing that the proposed demolition of the Chapel was EIA development by the fact that, by virtue of being less than 0.5 hectares, the condition contained in sub-paragraph (b) of the definition of “Schedule 2 development” was not satisfied. I make two passing observations. First there is no equivalent power conferred on a relevant planning authority, when deciding whether to adopt a screening opinion to the effect that development is EIA development, to disregard the fact that none of the conditions contained in sub-paragraphs (a) and(b) of the definition of “Schedule 2 development”, and in particular the minimum threshold of 0.5 hectares relevant in this case, is satisfied.

Second there is a tension between on the one hand the definition of EIA development in Regulation 2(1), which is confined to Schedule 1 development and Schedule 2 development likely to have significant effect on the environment and Regulation 4(3) and 4(9) on the other. Regulation 4(3) provides that a direction of the Secretary of State shall determine for the purpose of the Regulations whether development is or is not EIA development and Regulation 4(9) provides that he may direct that particular development is EIA development notwithstanding that it does not fall within the definition of “Schedule 2 development” in Regulation 2(1) because none of the conditions in subparagraphs (a) and (b) is satisfied including that it does not exceed or meet the relevant threshold in Column 2 of Schedule 2.

This tension is relevant in two contexts. First the prohibition in Regulation 3(4) against granting planning permission unless the environmental information has first been taken into consideration applies by virtue of Regulation 3(1) to every application for planning permission for “EIA development”. Does that prohibition apply to a case where the Secretary of State has made a screening direction that particular development is EIA development even though the development is not Schedule 2 development and thus does not fall within the definition of “EIA development” within Regulation 2(1)? In my judgment the answer to that question is yes because Regulation 4(3) provides that a direction of the Secretary of State shall determine for the purposes of the Regulation whether development is or is not EIA development. In my judgment the definition of EIA development in Regulation 2(1) must yield to that mandatory provision.

Second, when the Secretary of State has to decide whether particular development which is not Schedule 2 Development, because it falls below a relevant threshold, is EIA development pursuant to his power under Regulation 4(9) is he obliged to take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development as would be the case where either the local planning authority or the Secretary of State had to decide whether Schedule 2 development is EIA development by reason of Regulation 4(6)?

I have already indicated that I do not find this an altogether straightforward question. The obligation imposed by Regulation 4(6) is said in terms to arise when the decision which has to be made is whether Schedule 2 development is EIA development and the criteria in Schedule 3 are described as being selection criteria “for screening Schedule 2 development”. Moreover, although under Regulation 4(9) the Secretary of State is not confined to making directions in respect of Schedule 2 development, the means chosen by the draftsman to achieve that effect was not, as it could have been, to widen the definition of Schedule 2 development in Regulation 2(1). It might be argued that the inference is that the wording of Regulation 4(6) was deliberately intended not to apply where the Secretary of State is exercising his power under Regulation 4(9).

However for the reasons which I have set out earlier in this judgment (paragraphs 188-191 above) I am inclined to the view that when deciding under Regulation 4(9) whether to direct that development which does not meet the applicable threshold or criterion in the second column of the table in Schedule 2 is EIA development the Secretary of State is under an equivalent obligation to take into account such of the selection criteria set out in Schedule 3 as are relevant to the development.

Candlish was a case in which the wider power of the Secretary of State to make a screening directive that development is EIA development even though it is not Schedule 2 development did not avail the Claimant and thus did not fall for consideration. That is because there had been no request to the Secretary of State to make a screening direction and planning permission had been granted without EIA. The claimant’s complaint that the council should have decided that the smaller initial development was EIA development depended in the first instance in persuading the court that by reason of the connection between the smaller initial development and the larger later development the former satisfied the relevant threshold on which its designation as Schedule 2 development depended.

Thus in agreeing with Simon Brown J’s answer to the first question in Swale Davis J was answering the first of the two questions with which I am concerned. That is to say the question whether the development is of a category described in either schedule must be answered strictly in relation to the development applied for and not any development contemplated beyond that.

However he also agreed with Simon Brown J’s statement of principle as to the correct approach to be adopted when answering what Simon Brown J described as the further question arising in respect of a Schedule 2 development namely “whether it would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. Mr Forsdick placed very heavy reliance on Simon Brown J’s formulation of the principle to be applied in that situation: a proposal should not be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably substantial development.

It is important for present purposes that Davis J considered that Simon Brown J’s comments were in effect subsequently confirmed under the 1999 Regulations by the provisions of Regulation 4(5) which (in similar terms to Regulation 4(6) of the 2011 Regulations) required a planning authority at the stage of considering whether a Schedule 2 development was an EIA development to have regard to the relevant selection criteria set out in Schedule 3 which included consideration of cumulative development. He thus considered that the principle formulated by Simon Brown J applied at the stage of deciding whether development is EIA development as distinct from the stage (which was under consideration in Bowen-West) of complying with the obligation not to grant planning permission unless the environmental information has been taken into consideration, which involves among other things deciding whether the applicant has complied with the requirement to supply an environmental statement which satisfies the requirements specified in Regulation 2(1).

It is also important that Simon Brown J stated that the approach which he prescribed appeared to him appropriate on the language of the Regulations, “the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter.” (Emphasis added). By those words it seems to me that Simon Brown J was emphasising that the circumstances in which it is necessary to take into account the effects on the environment of a larger development are where those effects can properly be attributed to the smaller development because by promoting the larger development it carries in its wake or has a causal responsibility for them. It is for that reason that Simon Brown J stated that in common sense developers could otherwise defeat the object of the regulation by piecemeal development proposals – in other words by salami slicing.

In my judgment this is of particular importance and relevance in this case. If it can be seen that the smaller project under consideration, although harmless in itself, will lead to a larger development which may have significant effects on the environment it is necessary to take the effects of the larger development into account so as to avoid a situation in which by a series of small developments which fall under the radar the larger development comes about without an opportunity to subject it to EIA.

There was no suggestion by the Claimant in this case that anything of the sort applied as regards the relationship between the demolition of the Chapel for which it requested a screening direction and the prospective demolition and re-building of the houses in Phases 2 and 3. It was not suggested and certainly there was no evidence that by demolishing the Chapel the Council made it more likely that the demolition and redevelopment of Phases 2 and 3 would occur or that the latter could not or was unlikely to occur without the former. The latter was in no way dependent on the former as evidenced by the fact that the Chapel was not originally in the plan for Phase 3 in the SPG and that the Council itself negotiated with various parties with a view to preserving it as recently as 2009, at which time on the Claimant’s case the plans for Phases 2 and 3 had already been in existence for many years.

Nor was it suggested by the Claimant that any significant adverse effects of Phases 2 and 3 on the environment were likely to be dependent on or even materially contributed to by any alleged adverse effects on the environment flowing from the demolition of the Chapel. Indeed no alleged adverse effects, let alone significant effects, on the environment flowing from the demolition of the Chapel itself were even identified to the Secretary of State by the Claimant. Of course if the Secretary of State had considered that there was likely to be significant effects on the environment flowing from the demolition of the Chapel taken in isolation he would have been able to make a screening direction to that effect in response to the Claimant’s request.

I do not overlook Ms Lewis’ comment in the EIA analysis to which I have referred that the proposal would facilitate the eventual redevelopment of the area for housing as set out in the Klondyke Development Brief SPG. However the essence of the phase 2 and 3 plans appeared to be the demolition of a large number of residential terraced properties and their replacement with new houses. I can conceive of hypothetical circumstances where the Council submitted a series of separate proposals to demolish houses in the Phases 2 and 3 area street by street with the object of avoiding EIA in which, as accepted by Mr Forsdick, any one proposal might properly be characterised as an integral part of the wider Phases 2 and 3 and the Council might be guilty of salami slicing. In my judgment that is not what happened in this case and the Secretary of State did not err in failing to consider that it was.

I add in parenthesis that even in that hypothetical situation any attempt to avoid EIA would be unlikely to succeed precisely because of the power of the Secretary of State to issue a screening direction in respect of the smaller proposals under Regulation 4(9) even though they were not Schedule 2 developments by reason of being less than 0.5 hectares. Be that as it may in such a situation the Secretary of State might well be obliged in considering a request for screening to take into account any perceived effect on the environment of the wider Phases 2 and 3.

When considering in any case whether the relationship between the development under consideration and a larger scheme of which it is said to be a part requires the effects of the latter to be taken into account it is useful to consider whether the absence of such a requirement would enable the developer to defeat the object of the regulations by piecemeal development proposals.

In Ecologistas the ECJ having stated that the purpose of the amended Directive could not be circumvented by the splitting of projects identified the objective which it was concerned should not be circumvented. “…the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment…”. That could occur if by salami slicing a large project into a series of sub-projects each sub-project escaped EIA because its small size did not satisfy the definitions in Annex 1 and 2 or Schedules 1 and 2. Or it could occur by the grant of planning permission for the instant smaller project pre-empting or foreclosing the possibility of effective EIA of the larger project when it is considered in due course by conceding a principle applicable to both. (See the discussion by Laws LJ in Bowen-West at [34]-[37]).

In my judgment the nature of the relationship between the proposed demolition of the Chapel and the wider Phases 2 and 3 demolition and/or redevelopment was not such as to give rise to any realistic risk of either of those consequences resulting from a consideration of the proposed demolition of the Chapel in isolation from Phases 2 and 3.

If taken together the demolition of the Chapel and Phases 2 and 3 were likely to have significant effect on the environment they would not escape an obligation to carry out an assessment. As Ms Lewis pointed out in her comment in the EIA analysis once proposals were available for Phases 2 and 3 the Secretary of State could consider a screening direction regardless of whether the proposals met the threshold of 0.5 hectares. In doing so the Secretary of State would be free and indeed likely to be obliged to have regard to the demolition of the Chapel as a cumulative development within the meaning of paragraph 1(b) of schedule 3 of the 2011 Regulations which would be likely to be a criterion relevant to the development then under consideration(Regulation 4(6). As regards any significant adverse effects on the environment from the demolition of the Chapel that was considered by the Secretary of State in the screening direction on 6 January 2012. Nothing in that screening direction or the grant of permission for the demolition of the Chapel pre-empted or foreclosed consideration of any potential significant effect on the environment resulting from Phases 2 and 3 in due course.

Additional indirect support for this view is in my judgment to be found in some of the observations of Laws LJ in Bowen-West although the view is not dependent on it. The principal argument which he addressed in that case was whether the Secretary of State should have concluded that the largest scheme involved indirect secondary or cumulative effects of the July 2009 proposal. Those words are taken from paragraph 4 part 1 of Schedule 4 (or rather its predecessor equivalent in the 1999 Regulations) which lists information for inclusion in environmental statements.

There are two important qualifications which need to be flagged up.

First Laws LJ was concerned with a later stage in the process, namely the adequacy of the content of the environmental statement and he emphasised that the issues arising in that context were not comparable with those that arose in the ECJ screening decisions.

Second there is built into the definition of the information required to be included in an environmental statement the double test of whether particular information referred to in Part 1 of Schedule 4 is reasonably required to assess the environmental effects of the development and whether the applicant can reasonably be required to compile it. Moreover the language of paragraph 4 of Schedule 4 makes it explicit that the cumulative development which should be covered in a description of the likely significant effects of the development must result from the existence of the development. That is to be contrasted with the language of paragraph 1(b) of Schedule 3 which provides that one of the selection criteria for screening Schedule 2 development is that the characteristics of development must be considered having regard in particular to the cumulation with other development. That language does not explicitly indicate that the only effects of “other developments” which must be considered are those which result from the existence of the development under consideration.

Nonetheless the function of the selection criteria set out Schedule 3 is that such of them as are relevant to the development under consideration must be taken into account by the local planning authority or the Secretary of State when deciding if the development is “EIA development”, that is to say if it is likely to have a significant effect on the environment. Any adverse effect of “other development” can thus only be relevant to that question if it is such that because of it the initial development rather than the “ other development” has a significant effect on the environment. There is thus implicit a need for a causal link between any effect flowing from the other development on the one hand and the initial development on the other.

The question which Laws LJ considered arose out of the appellant’s main argument was whether the Secretary of State should have concluded that the largest scheme involved indirect, secondary or cumulative effects of the July 2009 proposal. As mentioned he rejected the submission that the question whether the effects of the larger scheme are cumulative effects of the smaller one is itself one of law. There is no rule to the effect that in any case where it is intended to continue or supplant a limited scheme with the larger one the effects of the latter are to be treated as the cumulative effects of the former.

In a case such as that before the Court of Appeal it was quintessentially a matter of judgment whether the scheme under consideration is an integral part of a larger scheme. In distinguishing Brown v Carlisle he said that in that case there was an inextricable link between the two schemes because the section 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.

By contrast in the case before the Court of Appeal the permitted developments could go ahead irrespective of the future proposals. It was a stand-alone proposal rather than one integrated development. [28][30][33]

As regards the question whether the effect of the grant of planning permission for the first project was “a foot in the door” for the larger intended scheme Laws LJ accepted that there would be some precedent effect flowing from the grant of planning permission which might be said to concede the principle of disposing of LLW on the site or adjacent to it. However it was only to the extent or on the scale allowed by the permission. If the larger application proceeded the issue of disposal of LLW of the magnitude thereby contemplated would be open and undecided. It would certainly not be foreclosed or prejudiced by the current permission. There was nothing to support the council’s claim that permission in that case would frustrate the aims of the Environmental Impact Regulation and the Directive.

It was noteworthy that if the larger scheme in due course was applied for it would as a whole (including that part of it which was in effect the present scheme) be the subject of EIA and thereby it seemed to Laws LJ that the purpose of the Directive would be fulfilled.

He quoted the ECJ in Commission v Spain:

“…the Directive’s fundamental objective is that before consent is granted, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a mandatory assessment with regards to the effects.”

He said that that is precisely what would happen if the larger scheme was in due course applied for.

The Inspector had accepted that the proposal was not piecemeal development or a development which could only properly be considered as part of a larger whole. It was not inevitably part of the more substantial development. If permitted, it would be implemented regardless of the outcome of any further planning application. In any event the subsequent application would require assessment of the full effects of the extension to the landfill area and the extension of time for the already permitted area so that any cumulative effects would be considered then.

Laws LJ did not accept that the Inspector and the Secretary of State made an impermissible leap from the view that this was a stand alone project to the conclusion that therefore no EIA of the larger scheme was necessary. All effects arising from the current and larger scheme together would be examined if the larger scheme was gone into. [34] - [37].

Making all appropriate allowance for the qualifications to which I have referred above in my judgment those passages from Laws LJ’s judgment provide some further support for the conclusion that the Secretary of State in this case did not err by failing to take into account any potential effects on the environment of Phases 2 and 3. I would draw attention in particular to the fact that Laws LJ had of course well in mind that by the time EIA of the two projects together came to be considered the grant of planning permission of the first one would be a fait accompli, the very point emphasised in this case by the Claimant.

I would also draw attention to the fact that Mr Harwood submitted that in deciding whether the project which falls to be assessed is the larger one the question is an objective one based on what the developer’s intentions are known to be or, if the application is of little use on its own, what is likely to follow. (Emphasis added). In this case the Secretary of State was entitled to take the view that the application to demolish the Chapel was not of little use on its own but had a site specific justification irrespective of whether Phases 2 and 3 would proceed and irrespective of whether it formed a part of Phases 2 and 3.

I would also draw attention to the fact that Mr Harwood accepted that there will be cases where future stages are so uncertain and the immediate application is being pursued for its own merits that the future stages can be disregarded. He took issue with the proposition that there was insufficient detail in respect of Phases 2 and 3 to require them to be considered in the context of the screening direction in relation to the Chapel. However that is a question of fact and for the reasons given earlier I do not consider that the Secretary of State erred in taking the view that consideration of Phases 2 and 3 was premature and indeed there was no challenge to that conclusion as regards the formal decision to that effect. In my judgment it cannot be said that the Secretary of State was relying on an impermissible assertion of an inflexible rule of law that no future development can ever be required to be considered in a screening direction until and unless there is a formal application for planning permission.

For all these reasons in my judgement the Claimant’s second argument in support of its first proposition fails. It follows that in my judgment the first ground of challenge fails.

The second ground of challenge was that the Secretary of State’s reasons for considering that the impact of the demolition with (a) the re-development of the Chapel site and (b) the previous clearance and the future re-development of Phase 1 were not likely to give rise to significant effects are neither adequate nor intelligible.

This ground was not advanced at the hearing with any great enthusiasm or elaboration. The letter dated 6 January 2012 set out under three distinct headings a summary of the reasons for the conclusion that the proposed demolition of the Chapel was not EIA development. I have quoted them above. Reference was made to the fact that other sites within the wider Klondyke area had been cleared and were being or were about to be redeveloped as supporting the conclusion that the demolition of the Chapel was not considered to give rise to significant environmental effects alone or in cumulation.

As pointed out by Mr Forsdick the cumulative impacts with Phase 1 were considered in box 27 of Ms Lewis’s screening analysis which I have set out earlier in this judgment. No further alleged cumulative effects with Phase 1 were put forward by the Claimant in response to the Secretary of State’s invitation to explain why the demolition of the Chapel should be subject to EIA. The proposal was for a small scale removal of the Chapel to slab level and not for its redevelopment. Its location was far removed from Phase 1. In my judgment there is nothing in this ground of challenge.

For the reasons set out above in my judgment the challenge to the Secretary of State’s screening direction date 6 January 2012 in relation to the proposed demolition of the Chapel fails and the claim for judicial review must be dismissed.