James Kenyon v The Secretary of State for Housing Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice David Richards,Lord Justice Lewison |
| Judgment Date | 05 March 2020 |
| Neutral Citation | [2020] EWCA Civ 302 |
| Date | 05 March 2020 |
| Docket Number | Case No: C1/2019/0148 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 302
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PLANNING COURT (CO/424/17)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice David Richards
and
Lord Justice Coulson
Case No: C1/2019/0148
Marc Willers QC and Dr Paul Stookes (instructed by Richard Buxton Solicitors) for the Appellant
Carine Patry (instructed by The Government Legal Department) for the First Respondent
The 2 nd, 3 rd and 4 th Respondents did not appear and were not represented.
Hearing date: 6th February 2020
Approved Judgment
INTRODUCTION
This appeal concerns a development site on the outskirts of Hemsworth, near Pontefract in West Yorkshire (“Site A”). On 16 December 2016, the first respondent directed that the proposed development of Site A was not EIA development within the meaning of regulation 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”) such that an environmental statement to assess the environmental effects of the development was not required. The appellant's application for judicial review of that screening direction was refused by Mrs Justice Lang DBE (“the judge”) on 18 December 2018 ( [2018] EWHC 3485 (Admin)). The appellant appeals against that decision with leave of Lindblom LJ.
The arguments on appeal ranged far and wide and included, somewhat surprisingly, a close review of the evidence before the first respondent and, subsequently, the judge. It was difficult to discern any substantial points of principle from any of this: speaking for myself, I wondered if the most important point to arise from the appeal hearing was the need to ensure that appeals in cases of this kind do not become another weary trot around a well-worn course.
Unusually, I start with the law (Section 2 below) because that informs the factual background and the relevant decisions (Sections 3 and 4) as well as the judge's judgment (Section 5). Having set out the issues raised by the appellant in Section 6, I then go on to deal with each Ground of Appeal in Sections 7 – 11. There is a short summary of my conclusions at Section 12.
THE LAW
The Regulatory Framework
At the relevant time, the 2011 Regulations prescribed the procedures to be followed when planning permission was sought for what might be “EIA Development”. That is defined in Regulation 2(1) as being 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 is common ground that this was not Schedule 1 development. It is also common ground that this was Schedule 2 development because, although it was for 150 dwellings (and Schedule 2 only applies to developments in excess of that number), Site A was greater than 5 hectares. Despite the fact that the part of Site A which was being developed was less than 5 hectares (because of the retention of a belt of trees to the south), Schedule 2 still applied. These factors (namely the fact that the number of dwellings was just below the applicable minimum and the size of Site A was only just above the applicable minimum because of the land that was not being developed) explain the repeated references in the screening opinion and screening direction under review to the comparatively small scale of this proposed residential development compared to those which more usually arise under Schedule 2. In that regard, I also note that Schedule 2 is primarily concerned with the extraction, energy and chemical industries, and infrastructure projects such as shopping centres and car parks.
Regulation 3 provides a prohibition on granting planning permission without consideration of environmental information and Regulation 3(1)(a) provides that Regulation 3 applies “to every application for planning permission for EIA development received by” the planning authority. Regulation 3(4) provides:
“The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken environmental information into consideration, and they shall state in their decision that they have done so.”
Regulation 4 stipulates when development is to be treated as “EIA development”:
“(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.
(2) The events referred to in paragraph (1) are—
(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development…
(6) Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the 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.
(7) Where a local planning authority adopts a screening opinion under regulation 5(5), or the Secretary of State makes a screening direction under paragraph (3)—
(a) that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and
(b) the authority or the Secretary of State, as the case may be, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (a) to the person who proposes to carry out, or who has carried out, the development in question.
(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…”
Regulation 5 permits an applicant for planning permission to request the local planning authority to adopt a screening opinion. Regulation 5(7) permits an applicant to ask the first respondent to make a screening direction if the local planning authority does not adopt a screening opinion within the specified timescales, or if they determine that the proposed development is “EIA Development”. The procedure to be followed is set out in Regulation 6.
Schedule 3 to the 2011 Regulations identifies three selection criteria which must be considered for screening a Schedule 2 development:
(i) Characteristics of development.
(ii) Location of development, and
(iii) Characteristics of the potential impact.
In relation to (i) above, paragraph 1 of Schedule 3 provides that “the characteristics of development must be considered having regard, in particular to … e) pollution and nuisances”. As to (ii) above, paragraph 2 of Schedule 3 states that “the environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard in particular to (a) the existing land use; (b) the relative abundance, quality and regenerative capacity of natural resources in the area; (c) the absorption capacity of the natural environment… paying particular attention to the following areas… vi) areas in which the environmental quality standards laid down in EU legislation have already been exceeded; vii) densely populated areas…”. As to (iii) above, Paragraph 3 of Schedule 3 is concerned with the characteristics of the potential impact including “the extent of the impact, the trans frontier nature of the impact, the magnitude and complexity of the impact, the probability of the impact and the duration, frequency and reversibility of the impact.”
As set out in Regulation 2, the test to be applied in considering whether an Environmental Statement is required is whether the development is likely to have significant effects on the environment. In R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869 at paragraph 43, Pill LJ said:
“43. What emerges is that the test to be applied is: “Is this project likely to have significant effects on the environment?” That is clear from European and national authority, including the Commission Guidance at B3.4.1. The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. Only if there is a manifest error of assessment will the ECJ intervene ( Commission v UK). The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker.”
Earlier at paragraphs 26 – 27 of his judgment, Pill LJ explained that “likely” meant “a real risk”.
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