Environmental assessment - recent cases: part 2

In the second in a two-part series Stephen Tromans QC continues his roundup of recent caselaw on environmental impact assessment. This time he covers issues including need, enforcement, SEA and appropriate assessment.

Need

R (Marton-cum-Grafton Parish Council) v. North Yorkshire Council [2013] EWHC 2406 (Admin)

In this challenge to permission for a “waste recovery park” it was alleged that the environmental statement should have included evidence as to the need for the development. This had been provided not in the ES but in the Planning Statement. It was said this resulted in incoherent information being provided and a “paperchase”. HHJ Gosnell found there to be no obligation in law to include need in the ES and that it was unrealistic to expect that interested members of the public would not know where to find the planning statement. The ground was unarguable and permission was refused.

R (Cherkley Campaign Limited) v. Mole Valley District Council [2013] EWHC 2582 (Admin)

Whilst mentioning need, it is worth drawing attention to the forceful judgment of Haddon-Cave J on the relationship between private demand and public need:

“This case engages the fundamentals of planning law. By its origins, philosophy and principles, planning law is concerned with the regulation of the private use of land in the interests of the community as a whole. As Sir Malcolm Grant said in his seminal book, Urban Planning Law (1982 edition at p. 6): “The planning system is created as an instrument of government, as a means of restricting private land use rights in the interests of the community as a whole.” Sir Malcolm Grant also observed that planning law prescribes the procedures - or sets the battle lines – for the resolution of conflict over land use “between the interest of private property and the prevailing “public” or “community” interests”” (ibid, p. 1). His words are as relevant today as they were 30 years ago.

“This case concerns a conflict between private developers and public campaigners. The developers seek planning permission to develop exclusive private golf and hotel facilities in the scenic setting of the Surrey Hills. The campaigners wish to prevent such a development in protected landscape of national importance. Much of the legal argument revolved around whether a ‘need’ for further golfing facilities could be demonstrated as required by the policy matrix. The developers argued that proof of private ‘demand’ for exclusive golf facilities equated to ‘need’. This proposition is fallacious. The golden thread of public interest is woven through the lexicon of planning law, including into the word ‘need’. Pure private ‘demand’ is antithetical to public ‘need’, particularly very exclusive private demand. Once this is understood, the case answers itself. The more exclusive the development, the less public need is demonstrated. It is a zero sum game.”

Further information

R (Evans) v. Basingstoke and Deane Borough Council [2013] EWHC 899 (Admin)

One aspect of this very lengthy judgment of Stadlen J is that there had been a failure to consider all effects, including indirect and cumulative effects, of development for processing and packing at a watercress farm. It was argued this development could lead to increased production at the site. It was also argued that whereas the question of whether an ES was adequate was a Wednesbury test, the same was not true of the question of whether the reply to a reg. 19 request was adequate.

The judge rejected that argument – whether what was supplied constituted “further information” was a matter for the Council, not the court. The existing case law on statements (Blewitt, etc) applied equally. The claimant also raised (very late) the fundamental question of whether there had been a change of use to EIA development previously and if so whether EU law required disapplication of the 10 year lawfulness provisions under s. 171B. The judge rejected that argument, essentially on the basis that an immunity time limit was in accordance with the principle of legal certainty and is essentially a procedural rule, satisfies the principle of equivalence and does not make assertion of breach of EU rights virtually impossible or excessively difficult to pursue.

Enforcement

R (Baker) v. Bath and North East Somerset Council [2013] EWHC 946 (Admin)

In this long running saga Hinton Organics were seeking retrospective planning permission for their composting facility. Various requests were made of them for additional information under reg. 19. In the absence of satisfactory responses, officers recommended enforcement action. The Council however decided to give Hinton a further three months. Kenneth Parker J held that there was no requirement that the Council take immediate enforcement action. However, he was concerned that giving a further three months where Hinton has already taken 14 months ran the risk of falling foul of the principles of EU law underlying the area. However, the Council was saved by evidence that Hinton had turned over a new leaf, and it was held that on balance the extra time was a reasonable, proportionate and efficient course. Had an enforcement notice been served, Hinton would of course have been able to appeal on ground A and put in an environmental statement at that stage.

Compensation

Case C-420/11 Leth v. Austria

This case considered in what circumstances an individual might be entitled to compensation for damage resulting from the grant of consent without EIA. The context was a claim for compensation for diminution in the value of Ms Leth’s property following an airport extension. The Court held that the Directive was concerned with the use by people of their material assets, which could be affected by noise, but that the pecuniary effects were not ones which had to be assessed. However, if there was failure to carry out EIA then in terms of compensation, damage attributable to diminution in the value of property could be recoverable. However, there would have to be a direct causal link between the failure and the loss of value, and in principle the breach of the EIA Directive would not normally itself account for the diminution – this being ultimately a matter for the national court.

SEA

Walton v. Scottish Ministers [2012] UKSC 44

It was argued that the adoption of a particular element (the Fastlink) of a relief road scheme around Aberdeen was a modification of a plan or programme under the SEA Directive. The SC proceeded on the basis that the regional transport strategy was such a plan or programme. However, the decision on Fastlink was made in the context of implementing the project, not by way of modifying the plan or programme, and hence fell within the scope of EIA rather than SEA. It did not change the framework for future development consents. Lord Carnwath (§ 99) went on to express doubt as to whether the strategy was indeed a “plan or programme” as it was not clear what were the “administrative provisions” which required it – in his view some degree of formality was required.

HS2 Alliance Limited, Buckinghamshire County Council and Heathrow Hub Limited v. Secretary of State for Transport [2013] EWCA Civ 920

The case is notable for a striking divergence of judicial opinion. Various parties had challenged the process for HS2, in particular the publication of the Command Paper “Decisions and Next Steps” (“DNS”) in January 2012. Following publication of the DNS paper, a proposed route was published and a paving bill (the High Speed Rail (Preparations) Bill) introduced in the House of Commons, as well as publication of a draft environmental statement on Phase 1 of the project. The draft ES included a section on the “strategic and route-wide alternatives” considered. The case for the objectors was that the DNS was a “plan or programme” which was “required by ... administrative provisions” and which “set the framework for future development consents” and hence within the ambit of the SEA Directive. Ouseley J had decided that the DNS was not such a plan or programme, because it would not have a sufficiently strong effect on the decision maker (Parliament) which would decide whether ultimately whether or not to give development consent for phase 1 of the HS2 project. As he put it, Parliament would be constitutionally free to make up its own mind on the project, and would not be constrained by the terms of DNS.

The issue split the Court of Appeal. The majority (the Master of the Rolls and Richards LJ) concluded that either the plan or programme would need to have some legal influence on the later decision (by narrowing the discretion that the decision maker would otherwise enjoy) or alternatively there would have to be cogent evidence that the decision maker would in fact follow the recommendations contained in the plan or programme. In this case, the DNS would have no legal influence on Parliament’s decision and the Court should not seek to second guess what Parliament, as a constitutionally sovereign body, would do, or how it would go about its task. On that basis, the DNS did not “set the framework” for future consent and was not within the SEA Directive. That made it unnecessary to rule on the further question of whether it was “required by ... administrative conditions”, though the majority indicated they would have inclined to the view that it was, as being “required” on a broad construction of that term by the preceding 2010 Command Paper, “High Speed Rail”.

The minority judgment, given by Sullivan LJ, robustly contradicts the majority reasoning. Of particular importance to Lord Justice Sullivan was the anomaly which would result from a situation where if HS2 was consented through a non-Parliamentary process (such as under the Planning Act 2008) then the DNS would have been subject to SEA requirements. The result of the Government’s contention was that member states would be able to avoid the requirements of SEA by choosing a legislative process to make the decision. This would mean that the benefit of SEA (lacking in EIA at present) of having to identify, describe and evaluate reasonable alternatives, would be lost. This would be contrary to the purposive approach required to the interpretation of the Directive by the European case-law. Sullivan LJ’s analysis does not suggest that a plan or programme must have a strictly legal influence on the later decision-making process in order to be within the SEA Directive. In his judgment there was cogent evidence that there was a real likelihood that the DNS would influence Parliament’s decision on HS2. In particular, he was of the view that the convention of collective ministerial responsibility was relevant – that convention would of itself have a very significant influence upon Parliament’s decision making process on the future HS2 Bill. As he put it in conclusion: “In order to ensure that the objectives of the [SEA Directive] are achieved it is necessary for the national court to look at the substance, not simply the constitutional form, of the entire decision-making process.”

Central Craigavon’s Application for Judicial Review [2011] NICA 17

This case is a 2011 one, but worth mentioning since it was due to be heard in May 2013 in the Supreme Court, but was subject to the appeal being withdrawn upon undertakings being given by the Department for the Environment (NI). It raised the question of whether SEA applied to a draft planning policy statement, dealing with retailing and town centres, which had the effect of relaxing existing policy controls. The Court of Appeal (Girvan LJ) had held that the draft policy statement was not subject to SEA because it was not “required” but was simply a statement of evolving departmental thinking. Further, it did not lay down a “framework” but simply indicated the material planning considerations to be taken into account. This approach however is arguably too narrow and contrary to the ECJ authorities such as Case C-567/10 Inter-Environnement Bruxelles. Planning policy statements are part of the formal planning framework in Northern Ireland and plainly have an influence on the determination of planning applications.

R (Wakil) v. London Borough of Hammersmith & Fulham [2012] EWHC 1411 (Admin)

The adoption by the council of what purported to be a Supplementary Planning Document for the regeneration of Shepherd’s Bush Market was quashed. It was found by Wilkie J to be in reality an Area Action Plan, and hence a Development Plan Document, as in substance it identified the area as one of significant change. The correct categorization as a SPD or DPD was held to be a matter of applying fact to legal requirements by the court and not one of planning judgment susceptible to challenge only on irrationality grounds. The DPD should have been subject to sustainability appraisal under the procedures then in force. As a separate matter, the obligation to conduct SEA was not directly linked to whether it was a DPD but whether it set the framework for future development. It was concluded that, having regard to the Commission Guidance on SEA, it did, since it provided detailed guidance on how the area should be regenerated. There had been no screening as required by reg. 9 of the SEA Regulations. As this was a European point, relief could not be withheld on delay grounds.

Shadwell Estates Ltd. v. Breckland District Council [2013] EWHC 12 (Admin)

This was a challenge to adopted Area Action Plan for the growth of Thetford. It was said that the assessment was inadequate in terms of effects on stone curlews. Beatson J noted that examination in public was intended to be a relatively informal process, that considerable weight should be given to the views of the statutory consultees, and that review was on Wednesbury grounds, so that only omissions or inadequacies which meant that as a matter of law there had not been an assessment were relevant. The assessment was not required to provide a comprehensive assessment of the entire body of evidence about stone curlews and criticisms of “a highly detailed nature” were inappropriate.

R (Chalfont St Peter Parish Council) v. Chiltern District Council [2013] EWHC 1877 (Admin)

A core strategy contained policies relating to strategic allocation of housing on the site of a former convent school. The claimants wished to see it continue in educational use and mooted a land swap arrangement with the county council to achieve that. The county council did not regard it as feasible however. It was argued that this possibility had not been assessed as an alternative as required by SEA procedures and by s. 19 of the Planning and Compulsory Purchase Act 2004. HHJ Richard Foster, following Heard v. Broadland DC, held that the council was entitled to accept the advice of the county and to regard the swap proposal as a “nonstarter” which did not require to be assessed as a reasonable alternative.

Appropriate Assessment

Case C-258/11 Sweetman v. An Bord Pleanála

The Irish Planning Board had granted development consent for a bypass at Galway, part of which would cross a European site at Lough Corrib, including limestone pavement (a priority natural habitat type) of which 1.47 ha would be lost from 85 ha. It concluded there would not be an adverse effect on integrity. The Supreme Court referred questions to the ECJ on the correct approach. The issue was whether permanent loss of the area of limestone pavement was necessarily incompatible with the finding of no adverse effect. The Court held that all the provisions of Art. 6 of the Directive were to be construed as a coherent whole in the light of the Directive’s conservation objectives. The obligation is to restore/maintain sites at a favourable conservation status, which entails “the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type ...” (§ 39). Authorisation may only be given where there is no reasonable scientific doubt as to the absence of such effects. This involved consideration of whether there was a risk that intervention would bring about the disappearance or irreparable destruction of a priority natural habitat type. At § 44 the Court gave the following guidance on what an AA under Art. 6(3) must comprise:

“So far as concerns the assessment carried out under Article 6(3) of the Habitats Directive, it should be pointed out that it cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned (see, to this effect, Case C-404/09 Commission v Spain, paragraph 100 and the case-law cited). It is for the national court to establish whether the assessment of the implications for the site meets these requirements.”

Cairngorms Campaign v. Cairngorms National Park Authority [2013] CSIH 65

CNPA had adopted a local plan which included housing allocations. There were policies to ensure that planning permission would not be granted unless the planning authority was satisfied there would not be adverse effects on integrity of the SAC. It was argued that there had been no AA of the effects of the housing allocations and that the plan meant that there would be pressure on the planning authority to grant permission. Rejecting the challenge, the Inner House of the Court of Session held that the matter was one to be judged by Wednesbury standards, applying the decision of the CA in Evans, that there were no set requirements for what an AA must comprise, and that planning procedure was a staged process so that there was no error in leaving more detailed assessment to later stages.

Hughes v. Carmarthenshire County Council [2012] EWCA Civ 1509

Mr Hughes, a cockle fisherman, challenged approval of reserved matters for new housing near Carmarthen Bay. The planning authority was satisfied there would not be significant adverse effects on the Bay because of sewage work improvements to reduce nutrient loadings that had been undertaken by Welsh Water. It was held that it was proper to take these works into account as capable of mitigating the effects of the new housing and that the fact that the housing would not contribute to a wider improvement in environmental quality of the Bay did not affect that conclusion.

European Protected Species

R (Prideaux) v. Buckinghamshire County Council [2013] EWHC 1054 (Admin)

Here Lindblom J reasserted the correct approach for local planning authorities in considering applications (in this case for a waste to energy facility) which might impact on European protected species (the black hairstreak butterfly). As per the Supreme Court in Morge, the authority did not have to undertake the licensing role of Natural England. If the proposed development is acceptable in planning terms, permission should normally be given unless the development would be likely to offend Article 12 of the Directive and would be unlikely to be licensed. In looking at alternatives to the proposed access road, the authority was entitled to consider that other routes which might possibly have lesser impact on wildlife were not “satisfactory” because of their other effects such as increasing traffic on local roads.

Relief

Walton v. Scottish Ministers [2012] UKSC 44

The case was also notable for comment of Lord Carnwath (§§ 103ff) on discretion as to relief. This needed to be seen as a counterbalance to widening rules of standing. He emphasised the factual differences and difference in legal framework between this case and Berkeley v. Secretary of State where by the time the House of Lords heard the matter the project had been abandoned. Lord Carnwath did not read the cases as requiring automatic quashing of a scheme where there had been some shortfall in SEA procedures, particularly where the breach had caused no substantial prejudice.

Stephen Tromans QC is a barrister at 39 Essex Street. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

In the first article Stephen covered issues such as environmental impact assessment, screening, conditions, subdivision and salami-slicing.