Barbara Burridge v Breckland District Council Greenshoots Energy Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Davis,Mr Justice Warren |
| Judgment Date | 19 April 2013 |
| Neutral Citation | [2013] EWCA Civ 228 |
| Docket Number | Case No: C1/2012/1141 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 April 2013 |
and
[2013] EWCA Civ 228
Lord Justice Pill
Lord Justice Davis
and
Mr Justice Warren
Case No: C1/2012/1141
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE WAKSMAN QC
(sitting as a High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Justine Thornton and Zack Simons (instructed by Richard Buxton) for the Appellant
John Hobson QC and Ned Helme (instructed by Michael Horn, Solicitor to Breckland District Council) for the Respondent
Alex Goodman (instructed by Metcalfe Copeman and Pettefar) for the Interested Party
Hearing date : 15 January 2013
This is an appeal against a decision of His Honour Judge Waksman QC, sitting as a High Court Judge, on 26 April 2012. The judge refused the application of Ms Barbara Burridge ("the appellant") to quash by judicial review two planning permissions granted by Breckland District Council ("the council") on 9 November 2011. The judge granted permission to apply for judicial review but refused the application. Permission to appeal to this court was granted by Sir David Keene, on a consideration of the papers.
The Facts
The planning permissions were granted, subject to conditions, to Greenshoots Energy Ltd ("Greenshoots") for a biomass renewable energy plant, near Kenninghall, Norfolk (application 1372) and for a combined heat and power plant on nearby land at Crown Milling, Heath Road, Kenninghall (application 0445). The planning officer's report to the council's development control committee ("the committee") on 0445 stated that the plant would be fuelled by biogas produced by the renewable energy plant proposed on land off Garboldisham Road, Kenninghall (1372). The proposal in 0445 included provision for an underground gas pipeline to carry the fuel between the two sites. The report on 1372 referred to an amendment to the scheme for the plant submitted earlier under the same number. It was stated that the application "has been amended to omit the proposed combined heat and power plant and relocate it at Crown Milling, an animal feed mill and poultry hatchery approximately 1.1km to the east." It was submitted, without dissent, that the amendment was intended to have the environmental advantage of moving a part of the installation farther away from the village of Kenninghall.
The two reports were cross-referenced to each other. In each case, it was recommended that planning permission be granted, subject to conditions. The applications were considered and approved by the committee on the same day, 31 October 2011.
The appellant lives about 260 metres away from the proposed renewable energy plant. Her standing to bring the claim is not challenged. Her claim is that the permissions should be quashed for failure to submit the applications considered on 31 October 2011 to a screening opinion under the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations"), since replaced in England.
A screening opinion was issued with respect to the un-amended application 1372. It was dated 25 March 2011 and noted that "the application site is located within an area of generally open countryside approximately 0.9km to the south-west of the village of Kenninghall. The site extends to some 2.7 hectares". The proposed development was considered to fall within schedule 2 of the 1999 Regulations, paragraph 3(a): "Industrial Installations for the Production of Electricity, Steam and Hot Water".
This was the conclusion of the screening opinion:
"The scale and nature of the proposed development, and the character of the surrounding area, are such that it is considered that the proposed development would not be likely to result in significant effects on the environment.
It is considered that the main environmental effects of the proposal would relate to: i) its effects on the character and appearance of the rural landscape, and ii) its impact of local amenity due to noise and odour emissions. It is considered that any such effects would not extend beyond the local area and would not be complex in nature. No sensitive areas would be affected by the proposed development.
It is considered that the proposed development would not have significant effects on the environment. Accordingly, this screening opinion finds that the proposal does not constitute EIA Development and that Environmental Impact Assessment is not required in this instance."
The appellant's case is that a further screening opinion should have been adopted before the two applications were placed before the committee on 31 October 2011.
The statutory scheme
Council Directive 85/337, as amended, provides at article 1(1):
"This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment."
Article 1(2) provides, in so far as is material:
"For the purposes of this Directive:
'project' means:
— The execution of construction works or of other installations or schemes,
— other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources."
Article 2 provides, in so far as is material:
"1. 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 regard to their effects. These projects are defined in Article 4.
2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive."
Article 4 provides:
"1. Subject to Article 2 (3), [not relevant in this case] projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2 (3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination,
or(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
3. 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.
4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public."
The selection criteria contemplated in article 4(3) are set out in Annex III under the headings "Characteristics of Projects", "Location of Projects" and "Characteristics of the Potential Impact". "Characteristics of Projects" must be considered "having regard in particular" to matters which include "the size of the project" and "the cumulation with other projects".
Annex II specifies projects subject to article 4(2) and these include:
"3. Energy industry
(a) Industrial installations for the production of electricity, steam and hot water (projects not included in Annex I);
(b) Industrial installations for carrying gas, steam and hot water; transmission of electrical energy by overhead cables (projects not included in Annex I)."
The Directive is transposed into domestic law by the 1999 Regulations. It is not suggested that they do not do so effectively but they need to be read in the light of the Directive. The procedure has been to integrate environmental impact assessment ("EIA") into existing procedures for consent to projects, as contemplated in article 2(2) of the Directive.
The Regulations need not be set out comprehensively for present purposes. Planning permission is not to be granted for EIA development unless the authority granting it has first taken an environmental statement into consideration. EIA development means, in so far as is material, schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Schedule 2 to the 1999 Regulations reflects Annex II in the Directive and includes the same provisions for the energy industry as those in Annex II.
Schedule 2 sets out "applicable thresholds and criteria for the purposes of classifying development as schedule 2 development" (paragraph 2), as permitted by article 4(2) of the Directive. Whether the appropriate threshold is crossed is obviously an important consideration when a local planning authority is considering a planning application. Under the energy industry heading for "industrial installations for the production of electricity" etc, it is stated that development is to be classified as schedule 2 development if "the area of the development exceeds 0.5 hectare". Under industrial installations for "carrying gas" etc, the threshold is that "the area of the works exceeds 1 hectare."
Under paragraph 1 of schedule 2, "area of the works" in the schedule includes:
"any area occupied by apparatus, equipment, machinery, materials, plant, spoil heaps or other facilities or stores required for construction or installation."
Regulation 4(5) provides:
"Where a local planning authority or the Secretary of State has to decide under these...
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