Larkfleet Ltd, R (on the application of) v South Kesteven District Council & Anor

The Claimant applies for judicial review of the decision of the Defendant, made on 27^th November 2013, to grant planning permission to Lincolnshire County Council (“LCC”) for the construction of the Grantham Southern Quadrant Link Road (“the Link Road”).

The basis of the claim is that the Environmental Statement (“ES”) accompanying the application for planning permission was flawed because it failed to make an adequate assessment of the proposed Southern Quadrant Sustainable Urban Extension (“the SQSUE”), either jointly or cumulatively with the Link Road, in accordance with the requirements of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations 2011”).

The Claimant has a commercial interest in challenging the grant of planning permission as it has interests in land at Manthorpe to the north of Grantham which it considers would be a more appropriate location for an urban extension to Grantham than the proposed SQSUE to the south of Grantham. However, planning permission has been refused for this site.

In 2007, Grantham was awarded ‘Growth Point’ status and funding by the Government, meaning that it was considered an appropriate location to focus a large amount of housing growth, which was expected to generate commercial and economic growth.

The Grantham Growth Point Strategic Board (“the Strategic Board”) was established to develop and oversee the strategy of ‘Grantham Growth’, which was a partnership between the Defendant and LCC.

The Defendant’s Core Strategy was adopted in July 2010.

Its housing policies included policy ‘H2: Urban Extension Sites (Grantham)’. Two potential SUEs were identified, one to the north and the other to the south of Grantham. The southern SUE was the ‘Southern Quadrant’ described at paragraph 5.2.9:

“H2B SOUTHERN QUADRANT

The site is located to the south of Grantham, and spans the East Coast Main Line. The whole SUE includes land between the A1 in the west and the A52 in the east, although it is envisaged that housing development will be contained within that part of the site between the railway line and the A52. It is expected that the site could yield up to 4000 new homes, together with employment development and community facilities. Access to the residential part of the SUE will be dependent upon the provision of a new road from the A52. Construction of new homes on the site is not likely to begin until 2011/2012.”

The Core Strategy provided that detailed master plans would be prepared for each site.

The Grantham Transport Strategy, adopted in 2007, before the SQSUE was proposed, had among its objectives, the “better management of movements into and through Grantham” and “to address the problems associated with … congestion in Grantham”. In its proposals, it stated:

“In Grantham, the number of large lorries unavoidably passing though the town makes a bypass on the A52 very desirable. The Strategy proposes that an East-West bypass is implemented as soon as possible in order to tackle this problem.”

“…it is considered that a town such as Grantham would benefit from certain new roads. All of these roads are likely to take some time to be built and it is proposed that they would be funded using money obtained from private developers a part of the planning conditions for large new developments around the town. This is necessary due to limited County Council funds and Central Government funding.”

The Core Strategy’s ‘Spatial Policies’ included policy ‘SP3: Sustainable Integrated Transport’. It stated:

“3.3.4

The Grantham Transport Strategy, which has been formally approved by both the District and County Councils, has identified a package of measures to improve traffic management and reduce congestion in the town … The measures include a mix of ongoing schemes, such as partnerships working with public transport operators to improve services, and schemes which can be delivered in the short term (before 2010), such as public transport infrastructure improvements, and longer term schemes (from 2011 to 2021 and beyond) including the provision of new roads.

3.3.5

There is insufficient funding to deliver all of the improvements proposed in the Grantham Transport Strategy and the Council will work closely with Lincolnshire County Council and other partners to identify potential sources of funding. It is proposed that all large scale infrastructure proposals identified in the Strategy will be funded through developer contributions from the private sector, in accordance with Policy SP4.

3.3.6

The Grantham Transport Strategy has identified the following road schemes as priorities for further work and investment:

- The Grantham East-West relief road linking the A1 and A52 is critical to reducing the amount of through traffic (especially heavy lorries) and resultant congestion in the town centre, enabling the traffic management measures to support modal shift identified in the Strategy to be implemented. The relief road will also provide access to the Southern Quadrant SUE…”

In a lengthy process of discussion, negotiation and consultation, the Defendant developed the Grantham Southern Quadrant Masterplan Supplementary Planning Document as part of its emerging Local Plan. Buckminster Estates (“Buckminster”), who are the landowners of the majority of the site under consideration in the Master Plan, were closely involved in this process. The Masterplan was adopted by the Defendant in February 2013.

The Masterplan made a number of references to the proposed new road. At p.50 it stated:

“The Southern Relief Road will provide a high standard link road between the A1 in the west and the A52 in the east. It will provide much needed relief to the centre of Grantham and will in turn have significant regeneration and enhancement benefits for the wider town. Lincolnshire County Council are investigating the possibility of introducing town centre HGV restrictions once the SRR is open. In addition to resolving key town centre traffic issues, the SRR will also provide a key strategic access point to the SQ development.

At its western extent, the SRR will be likely to tie-in to a new roundabout on the B1174 which is to be constructed as part of a separate yet related scheme linking the B1174 to a new grade separated junction on the A1. At its eastern extent, the scheme would tie-in to the A52 at a new roundabout.

Lincolnshire County Council are advancing the proposals for the SRR and have undertaken various studies and considered different design options.. Two key options were considered before the peripheral alignment running largely around the southern boundary of the development area was chosen….”

The Masterplan SPD was subject to Strategic Environmental Assessment pursuant to the SEA Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004 on the basis that it was a “plan or programme” which “set the framework for development consent” and was “required by legislative, regulatory or administrative decisions” within the meaning of the Directive and Regulations.

The Post-Adoption Statement explained how the Strategic Environmental Assessment had been taken into account in the adoption of the Masterplan and referred to the delivery of the Link Road.

LCC submitted an application for planning permission for the Link Road to the Defendant on 25^th March 2013. Permission was sought to construct a 3 km single carriageway to run between the B1174 to the west and the A52 to the east. It would provide access to the SQSUE, via a roundabout with an arm intended to lead to the ‘primary street’ of the SQSUE. The link road between the B1174 and A1 was the subject of a separate planning application, for which permission was granted at an earlier stage.

The planning application was accompanied by an ES, pursuant to the EIA Regulations 2011. This had been preceded by a Scoping Opinion issued in December 2012. Both LCC and the Defendant accepted that the ES ought to assess the likely cumulative effects of the Link Road and the SQSUE in combination with each other. Chapter 14 of the ES addressed the cumulative effects.

Pursuant to requests made under reg. 22 of the EIA Regulations 2011, LCC submitted further environmental information in the form of supplementary reports regarding the heritage and ecology implications of the Link Road. Those reports did not purport to assess the cumulative impact.

In May 2013, Buckminster applied to the Defendant for a scoping opinion on the environmental statement to accompany the application for planning permission for the SQSUE.

In June 2013, members of the Defendant’s Development Control Committee attended a briefing, organised by the Defendant’s officers, by LCC’s planning consultants on the Link Road application for planning permission and by Buckminster’s planning consultants “on their progress in developing proposals on the Southern Quadrant Sustainable Urban Extension and to assist with any queries on the Southern Quadrant Link Road proposals that link in with the wider development site”. The slides presented by Buckminster’s consultants included an illustrative masterplan, two parameters plans and various cross sections. All these were in general accordance with the Masterplan SPD.

The Defendant granted planning permission for the Link Road on 27^th November 2013.

Buckminster applied to the Defendant for planning permission for the SQSUE in September 2014; the application was accompanied by an environmental statement. Neither document was in evidence before me. I was informed that the application for outline planning permission was based on the Masterplan, with no further details provided. The proposed development is substantial. It is for up to 3,700 houses, up to 10,000 square metres of B1, B2 and B3 floor space, educational facilities and a local centre.

The EIA Regulations 2011 transposed the requirements of the EIA Directive 2011/92/EU which require a structured assessment of the environmental effects of “projects which are likely to have significant effects on the environment” (Art. 1.1) prior to the determination of an application for planning permission.

It was common ground that both the Link Road proposal and the SQSUE proposal were EIA developments falling within Schedule 2 to the Regulations, defined in Reg. 2(1) as “a development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”.

Both developments were “infrastructure projects” as listed in section 10 of Schedule 2. The Link Road came within the definition in paragraph 10(f): “construction of roads”. The SQSUE came within the definition in paragraph 10(b): “urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas”.

Reg. 3 of the EIA Regulations prohibits the grant of planning permission without prior consideration of the “environmental information”, which is defined in Reg. 2(1) as:

“the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development”.

Reg. 2(1) defines “environmental statement”as meaning:

“a statement—

(a)

that includes such of the information referred to 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 in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b)

that includes at least the information referred to in Part 2 of Schedule 4”

This distinction between, on the one hand, the information which must be included insofar as it is “reasonably required” and, on the other hand, the information which must in any event be provided as a bare minimum, reflects Article 5 of the EIA Directive which draws the same distinction. Article 5(3) states that the information to be provided “shall include at least”:

“(a)

a description of the project comprising information on the site, design and size of the project;

(b)

a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;

(c)

the data required to identify and assess the main effects which the project is likely to have on the environment;

(d)

an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects;

(e)

a non-technical summary of the information referred to in points (a) to (d).”

Article 5(3) is transposed by Schedule 4 to the Regulations which provides:

“Schedule 4

Information for inclusion in environmental statements

PART 1

1.

Description of the development, including in particular-

(a)

a description of the physical characteristics of the whole development and the land-use requirements during the construction and operational phases;

(b)

a description of the main characteristics of the production processes, for instance, nature and quantity of the materials used;

(c)

an estimate, by type and quantity, of expected residues and emissions (water, air and soil pollution, noise, vibration, light, heat, radiation, etc) resulting from the operation of the proposed development.

2.

An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects.

3.

A description of the aspects of the environment likely to be significantly affected by the development, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.

4.

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;

(b)

the use of natural resources;

(c)

the emission of pollutants, the creation of nuisances and the elimination of waste, and the description by the applicant or appellant of the forecasting methods used to assess the effects on the environment.

5.

A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.

6.

A non-technical summary of the information provided under paragraphs 1 to 5 of this Part.

7.

An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the applicant or appellant in compiling the required information.

PART 2

1.

A description of the development comprising information on the site, design and size of the development.

2.

A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

3.

The data required to identify and assess the main effects which the development is likely to have on the environment.

4.

An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects.

5.

A non-technical summary of the information provided under paragraphs 1 to 4 of this Part.”

Under paragraph 4 of Part 1 of Schedule 4 above, an ES has to include a description of the likely significant effects of the development on the environment, including “cumulative” effects from other developments. The Defendant considered the proposed SQSUE development as part of the cumulative assessment.

The Claimant submitted that the ES should have considered the impact of the Link Road jointly with the proposed SQSUE, not as a single project. Alternatively, even if it was permissible to treat the Link Road as a single project, the ES’s assessment of the cumulative effects of the SQSUE was insufficient to meet the requirements of the Regulations.

The Claimant submitted that the Link Road and the SQSUE were in substance part of one overall package of interconnected components. They were treated as such by the Core Strategy, which stated in policy H2B:

“Access to the residential part of the SUE will be dependent upon the provision of a new road from the A52.”

Policy SP3 stated:

“The provision of an east-west relief road between the A1 and A52 to the south of Grantham will be brought forward as part of the Southern Quadrant SUE to the town.”

Even before the adoption of the Core Strategy, there were plans to develop the Link Road together with the SQSUE. At a meeting on 29 May 2008 the Strategic Board considered a briefing paper by Brian Thompson of LCC entitled ‘East-West Link Road Alternatives for Obtaining Planning Approval’. This paper noted that Buckminster had proposed “a large mainly residential development”which could deliver a link between the B1174 and A52 and went on to consider two alternatives ways of obtaining planning permission “for this development”. The first option was as a highway scheme promoted by LCC as local highway authority. The second option was “highway scheme promoted as part of other development”, in which “road proposals would be included as part of a larger planning application”. The paper suggested that the second option “would be quicker and less dependent on the Secretary of State”.

The Strategic Board subsequently produced a report dated 15 September 2008 regarding the delivery of the Link Road. This paper noted that “including the road in the overall development application is the preferred option” since “this would allow the statutory processes to be completed in the minimum time”.

The eventual decision to proceed with a separate application for the Link Road was a pragmatic one, the Claimant submitted. A meeting on 11 January 2012 recorded:

“Three separate planning applications likely as follows: Housing, Road, Employment Land.”

“SQ key is road – top of s106 list for everyone as two inextricably linked” (p.1)”

“Application for the road likely to come before housing – good for PR & Politically” (p.3)

There were a number of references to the Link Road in the Masterplan, summarised at p.2 in the statement:

“The development of the SQ also includes the Southern Relief Road that will help to relive town centre congestion in Grantham.”

The Planning Statement accompanying the application for planning permission referred to the “inter-relationship” between the Link Road and the SQSUE. The SQSUE could not proceed without the Link Road and the Link Road could not progress without financial contributions by the developer of the SQSUE. Any planning permission subsequently granted for the SQSUE would require a legal undertaking to facilitate the Link Road. There were references to the Link Road and the SQSUE being “inextricably linked”. In the section headed “Planning balance and conclusions” there was reference to environmental disadvantages which would be outweighed by the two public benefits of the scheme: the SQSUE and the removal of 4.200 vehicles per day and Heavy Goods Vehicles from the town centre.

The covering letter dated 21^st March 2013 stated that the Link Road was “an essential element of infrastructure” to enable the Masterplan SPD to be implemented and that the planning policies recognised the close relationship between the SUE and the Link Road. It also stated that the provision of the Link Road would reduce traffic volumes in Grantham town centre and lead to improvements in its environment.

Members of the Development Control Committee received a joint briefing on both planning applications from the two sets of consultants at the meeting on 19^th June 2013, which confirmed that the applications were in reality being treated as part of the same package.

The Claimant emphasised at length the collaboration between the Defendant, LCC and the Buckminster Estate (which is the owner of the majority of the land on which the Link Road and the SQSUE are to be built), on the delivery of the overall package. Buckminster regularly attended meetings of the project team which reported to the Strategic Board. It had informal discussions with officers of the Defendant and the LCC. It was actively involved in the Masterplan. It shared information with LCC in its work on the Link Road.

In 2012, the Strategic Board considered whether Buckminster should make the planning application for the road instead of LCC. The Claimant submitted that the decision that it would be preferable for LCC to make the application was a purely pragmatic one. Also in 2012, the Strategic Board considered whether the application for planning permission should be made to the Defendant, as planning authority, or to LCC, as highway authority

On the basis of this evidence, the Claimant submitted it was wrong in law for the ES to proceed on the basis that the “project” for the purpose of the EIA Regulations 2011 was the Link Road in isolation.

The Claimant referred to R v. Swale Borough Council ex parte RSPB [1991] 1 P.L.R. 6, where Simon Brown J. held at 16E that, in considering the likely environmental effects of a proposed development for the purposes of the EIA Directive and Regulations:

“The proposals 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”

The Claimant submitted that this approach was consistent with the approach of the CJEU in seeking to ensure that the splitting of what is in reality a single project into more than one planning application did not entail any reduction in the scrutiny afforded by the EIA Directive.

In Ecologistas en Accion-CODA v Ayuntamiento de Madrid [2008] ECR 1-6097, AG Kokott saidat paragraph 51 of her Opinion:

“Lastly, the objective of the EIA Directive cannot be circumvented by the splitting of projects. Where several projects, taken together, may have significant effects on the environment within the meaning of Article 2(1), their environmental impact should be assessed as a whole. It is necessary to consider projects jointly in particular where they are connected, follow on from one another, or their environmental effects overlap.”

The CJEU agreed saying, at [48]:

“the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take into account 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.”

In R (Burridge) v. Breckland District Council[2013] EWCA Civ 228, the Court of Appeal considered a challenge to the grant of two interlinked planning permissions. One application was for a biomass renewable energy plant and the other was for a combined heat and power plant about 1.1km away. They were to be connected by an underground gas pipe to carry the fuel between the two sites. The Court held that this should have been treated as a single “project” for the purposes of EIA. Pill L.J. held, at [41]:

“…The two proposed developments were functionally interdependent and can only be regarded as an "integral part" of the same development. They cannot be treated otherwise than as a single project or development and were actually considered by the committee on the same day and on the basis of cross-referenced reports. The geographical separation of something over 1km does not, in my judgment, defeat that, particularly given the link provided by the pipeline ..”

Applying these principles to the present case, the Claimant submitted that the Link Road and the SQSUE were “functionally interdependent” and the Link Road was an “integral part” of the SQSUE. Their environmental effects overlapped and therefore they should have been treated as one “project” for an environmental impact assessment.

Alternatively, the Claimant submitted that even if it was permissible to treat the Link Road as a single “project”, the assessment of cumulative effects in the ES was insufficient.

By reg. 2(1) of the EIA Regulations 2011, it was mandatory for an ES to include as a minimum the information referred to in Part 2 of Schedule 4. This includes “the data required to identify and assess the main effects which the development is likely to have on the environment” and “a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects”.

The ES did not provide this information in respect of the SQSUE. The information about the SQSUE was in general terms, and did not even include the detail which was in the Masterplan. The Claimant highlighted the deficiencies of the ES by reference to particular topics: visual impact, cultural heritage, ecology. No information at all was provided about the anticipated layout of development across the site, the anticipated height of buildings, or the anticipated sequence in which the development would be built. Principles and parameters in all of these respects had been set out in the Masterplan.

The Claimant submitted it was essential for the adverse cumulative effects to be identified before planning permission was granted for the Link Road because, once planning permission was granted, it would not be possible to alter the design or alignment of the Link Road.

The relevant legal principles are set out in R v. Swale Borough Council ex parte RSPB [1991] 1 P.L.R. 6, per Simon Brown J. at 16E; R (Davies) v Secretary of State for Communities and Local Government [2008] EWHC 2223 (Admin), per Sullivan J. at [51] – [53]; R (Candlish) v Hastings Borough Council [2005] EWHC 1539 (Admin), per Davis J at [61] – [70]; R (Burridge) v. Breckland District Council[2013] EWCA Civ 228, per Davis LJ, at [75] – [80]; Ecologistas en Accion-CODA v Ayuntamiento de Madrid [2008] ECR 1-6097 at [48].

It is for the planning authority to decide the following issues:

At each stage of this process, the planning authority has to exercise its judgment on the material before it. It must direct itself properly in law, by correctly interpreting the Regulations, in accordance with the case law. It must not act irrationally, and it must have regard to all relevant considerations and not have regard to irrelevant considerations. If it has reached its conclusions lawfully, then the Court ought not to intervene so as to substitute its judgment for that of the planning authority.

Applying those principles to this case, I do not consider that the Claimant has established any error of law in the Defendant’s decision-making process.

The Defendant correctly concluded that the proposed development – the Link Road – was an “infrastructure project” which came within the definition in paragraph 10(f) of Schedule 2: “construction of roads”.

In my view, it was entitled to conclude, in the exercise of its judgment, that the Link Road was not an integral part of the SQSUE, such that both developments ought to be considered jointly, as if they comprised a single Schedule 2 development, for the following reasons.

The SQSUE was a different category of infrastructure project – namely, an urban development project within the definition in paragraph 10(b). Its purpose was to provide housing and ancillary facilities.

The applicant for planning permission for the SQSUE was a private developer, an entirely separate legal entity from LCC, the developer and applicant for planning permission of the Link Road.

Unlike the private developer, LCC was exercising its statutory functions as a highway authority. Construction of the Link Road was in accordance with the Grantham Transport Strategy which recommended a bypass linking the arterial roads (the A1 and the A52), so that through traffic, particularly HGV lorries, would not need to pass through Grantham town centre. Construction of the Link Road was also in accordance with the transport plan in the Core Strategy, to reduce through traffic and congestion in the town centre. The report to the Planning Committee meeting on 19^th November 2013 noted that, in combination with the link from the B1174 to the A1, the Link Road would provide the full alignment of the Grantham Southern Relief Road.

The Grantham Transport Strategy recommending the bypass predated the SQSUE. The bypass diverting traffic away from the town centre was needed whether or not there was an SQSUE.

Once the SQSUE was planned, the proposed Link Road met an important additional need as an access route to the SQSUE. But this did not make the Link Road part of the same development as the SQSUE. Plainly road access had to be provided to the SQSUE. But it did not have to be in the form of a major Link Road joining two arterial roads. If there had not been an independent requirement for a bypass, the SQSUE could simply have been connected by new roads to the existing A52 or B1174.

Both the Core Strategy and the Transport Strategy made it clear that the Link Road would have to be funded by contributions from private developers because there were insufficient public funds. This is not unusual, and was in accordance with local policy. Once the SQSUE was planned, it made good sense for LCC to seek to obtain funding contributions from private developers in connection with that development. However, in my view, the financial link did not make the Link Road an integral part of the SQSUE. Most major development now has to make a financial contribution to infrastructure needed to accommodate it. But this does not mean that the infrastructure and the contributing development automatically become part of the same Schedule 2 development. (For these purposes I have disregarded the proposed change in the funding arrangements as this occurred after planning permission was granted).

The fact that Buckminster owned the majority of the land upon which both developments are to be built, and was the developer for the SQSUE, was not a decisive indicator that both proposals were part of the same development. Buckminster is a major landowner in the Grantham area, and so there are likely to be applications for planning permission on their land from time to time. Not every proposed development on their land will be linked; there will have to be an assessment based upon the facts in each case.

The working relationships between Buckminster, the Defendant and LCC cannot, in my view, alter the proper analysis of these two developments for the purposes of the EIA Regulations. In any event, it seems to me to be entirely understandable, even laudable, that all those with an interest in these huge projects should liaise with each other and work co-operatively together.

The SQSUE and the Link Road are two major projects, each of which is likely to have significant environmental effects. Given their proximity to each other, the Defendant and LCC properly considered that those effects ought to be considered cumulatively, as well as individually. This is provided for by paragraph 4 of Part 1 of Schedule 4 to the Regulations which requires consideration of cumulative effects.

As Members of the Development Control Committee were being asked to consider the cumulative effects of both proposed developments, it was beneficial for them to receive a briefing on the SQSUE at the meeting on 19^th June 2013.

The CJEU has rightly emphasised that the decision-maker must not circumvent the obligations in the Directive by artificially splitting projects thus avoiding environmental assessments, whether deliberately or unintentionally. This has not happened here. From the outset the Defendant has accepted that both developments require a full ES. It has accepted that the effects of the SQSUE need to be considered cumulatively with the Link Road. In addition, there has been a Strategic Environmental Assessment of the Masterplan proposals. Thus, these developments have been and are being assessed and the Regulations are not being circumvented.

For these reasons, the Claimant has failed to establish, under Ground 1, that the Defendant acted unlawfully.

The Claimant submitted, in the alternative, that even if it was permissible for the Defendant to treat the Link Road as a single development, the assessment of cumulative effects in the ES was insufficiently detailed and so failed to meet the requirements of the EIA Regulations 2011.

I have set out above the relevant provisions in the EIA Regulations.

If the Defendant had decided that the Link Road and the SQSUE ought to be regarded as part of the same substantial development, and therefore assessed jointly, the requirements of Schedule 4 would have to be met in respect of both developments when planning permission was considered. In effect, a full environmental impact assessment of both the Link Road and the SQSUE would have been required, covering all relevant matters listed in Schedule 4.

Since the Defendant decided that the Link Road was a single development, only a full environmental impact assessment of the Link Road was required, not a full environmental impact assessment of the SQSUE.

The Defendant and LCC accepted that the Link Road assessment ought to include, pursuant to Part 1, paragraph 4 of Schedule 4, a description of the likely significant effects of the Link Road development “cumulatively” with the SQSUE. The Defendant and LCC rightly treated this exercise as significantly narrower in scope than a full environmental impact assessment of the SQSUE. In considering cumulative effects, the focus is intended to be on those significant environmental effects which are incrementally increased as a result of the existence of both developments, when considered cumulatively. So not every significant environmental effect of the SQSUE had to be included.

The extent of the assessment of cumulative effects was a matter of fact and judgment for the decision-makers. In Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321, the Court of Appeal cited with approval, at [28], the judgment of Sullivan LJ in Brown v Carlisle City Council [2010] EWCA Civ 523 where he said, at [21]:

“[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 LJ went on to say, at [28]:

“It is clear also from the words of the regulation itself: “such information as it reasonably required” and “a description of the likely significant effects”. These formulations import, as it seems to me, the application of a measured judgment to the evidence. This is 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 DC [2011] EWCA Civ 157.”

Logically, these observations must apply to the content of an environmental statement’s assessment of cumulative effect as well as the question whether or not any cumulative effect with other developments ought to be assessed at all.

I remind myself of the limited nature of the court’s jurisdiction to review the content of an environmental statement, as explained by Sullivan J. in R v. Rochdale Metropolitan Borough Council ex parte Milne (No. 2) CO/292/2000:

“The question whether such information does provide a sufficient “description of the development proposed” for the purposes of the assessment regulations is, in any event, not a question of primary fact, which the court would be well equipped to answer. It is pre-eminently a question of planning judgment, highly dependent on a detailed knowledge of the locality, of local planning policies and the essential characteristics of the various kinds of development projects that have to be assessed.”

Although, where the Court considers that the minimum requirements of an environmental statement are not met, it should intervene: see Case C-227/01 Commission v. Spain [2004] E.C.R. 8253, at [56], [61] and the opinion of the Advocate General at [55] – [57].

In this case, as the SQSUE was only at the stage of an illustrative masterplan (with two parameter plans), there were limits on what could reasonably be assessed by the LCC and the Defendant. The definition of ‘environmental statement’ in reg. 2(1) provides that information in Part 1 has to be included in so far as it is “reasonably required” to assess the environmental effects of the development and which the applicant “can reasonably be required to compile”.

The Masterplan did not prescribe, other than in the most general terms, the location of any particular street, open space or building nor the size, type and appearance of the proposed buildings. Nor did it contemplate that any particular existing view or feature would be adversely affected. The Masterplan “details the development aspirations and objectives for the SQ which will subsequently inform and underpin the more detailed masterplanning and design proposals for the development” (p. 406). The illustrative plan was not binding and a different illustrative layout could easily be consistent with the text of the Masterplan.

The ES assessed the following environmental aspects:

“Air Quality;

Cultural Heritage;

Ecology and Nature Conservation;

Geology and Soils;

Landscape and Visual Amenity;

Noise and Vibration;

Road Drainage and Water Environment;

Land Use and Community Effects;

Cumulative effects. ”

As recorded in the Report to the Committee Meeting of 19^th November 2013, the ES was subject to full consultation. As a result of consultees’ responses, further assessments were conducted in relation to:

“Ecology re: protected species including updated survey results;

Archaeology re: outcome of trial trenching investigations;

Heritage re: further assessment of the impact upon nearby heritage assets;

Local Wildlife Sites re: mitigation proposals.”

Cumulative effects were specifically considered in part 14 of the ES. Each of the environmental aspects previously considered in detail in relation to the Link Road were further considered in the context of cumulative effects. I accept the submission of the Defendant and LCC that, as an exercise of judgment, they accurately identified the likely significant environmental effects, and measures to reduce those effects, in so far as it was reasonably possible to do so from the Masterplan.

For example, the ES correctly recorded that, in terms of cultural heritage, the cumulative effect would be a “significant impact on the local Historic Landscape through the loss of a large part of arable fields, field layouts and boundaries, and woodland. The area will become built up with new structures…” (paragraph 14.4.1). I accept the submission that, in the absence of precision about the size and location of buildings for which consent would be sought, the Defendant and LCC were entitled to conclude that this was all that could reasonably be said.

Dealing with the cumulative effects on ecology, the ES noted the features of ecological value which would be retained. It stated that “the development … would result in the loss of much of the arable and semi-improved grassland and some of the internal hedgerows ... This would have an impact upon foraging and commuting sites for bats, badger foraging areas and breeding and foraging sites for birds” (paragraph 14.5.5). Bearing in mind that it was not known which particular areas of grassland and hedges would be retained, I accept that the Defendant and LCC were entitled to conclude that a more precise assessment could not be provided.

Dealing with cumulative effects on landscape character, the ES recorded that, with the Urban Extension, “residential development would occupy the eastern valley sides while commercial employment development would be on the western valley sides …” (paragraph 14.7.3). “The overall effect … would be a significant urban extension of Grantham, occupying the primarily open fields … The extension would effectively shift the edge of Grantham further south … and would create a new and softer wooded urban fringe …” (paragraph 14.7.4). Given that the size and location of proposed buildings for which consent would be sought was not known, I accept that the Defendant and LCC were entitled to conclude that more detail could not reasonably be provided.

There was a separate assessment of impact on visual amenity. It identified “a significant change in visual amenity … the SQ Development would largely overwhelm views of the [Link Road] in views from … the north … whereas views from the south and east, particularly within the valley would see comparatively less change … as the [Link Road] would remain the southern extent of new development and screen much of the [Urban Extension]” (paragraph 14.7.8) and “... the area would see significant changes …” (paragraph 14.7.9). I consider that this was a sufficient description of the likely significant environmental effects.

In my judgment, it was telling that the Claimant’s counsel was unable to identify, when asked, any specific cumulative environmental effects at this site which had been either omitted or inadequately assessed in the ES.

The Report to the Planning Committee of 19^th November 2013 recorded that, following the further consultations under Regulation 22, the Environment Agency, Natural England, the Highways Authority, English Heritage, Heritage Lincolnshire and Lincolnshire Wildlife Trust had no outstanding objections. They were satisfied with the environmental assessments and the conditions and mitigations proposed. This evidence does not lend any support to the Claimant’s contention that the ES was inadequate.

Finally, I have had regard to the fundamental purpose of the Directive which is to ensure that the decision-maker is sufficiently informed about likely significant environmental effects when deciding whether or not to grant planning permission, and on what conditions. The Claimant has failed to establish that the Defendant was not sufficiently informed. In my judgment, the ES (read together with the supplementary reports) did adequately inform the Planning Committee, in accordance with the Regulations. The Defendant was not seeking to avoid its environmental obligations. In that context, it is relevant to note that, as well as the ES, the Defendant had conducted a Strategic Environmental Assessment of the Masterplan proposals, and it required a separate environmental statement to accompany the planning application for the SQSUE.

At the stage at which the Defendant granted planning permission for the Link Road, it could not have known the exact content of the application for planning permission for the SQSUE or the accompanying environmental statement, which were not submitted until September 2014. Therefore the Claimant’s criticisms of the 2014 SQSUE application and environmental statement cannot be a proper basis upon which to challenge the grant of planning permission for the Link Road.

For these reasons, the Claimant has failed to establish, under Ground 2, that the Defendant acted unlawfully.

Accordingly, the claim is dismissed.