John Gillespie and First Secretary of State, Bellway Urban Renewal Southern
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards |
| Judgment Date | 20 January 2003 |
| Neutral Citation | [2003] EWHC 8 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3188/2002 |
| Date | 20 January 2003 |
[2003] EWHC 8 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/3188/2002
David Wolfe (instructed by Richard Buxton) for the Claimant
Tim Mould (instructed by The Treasury Solicitor) for the Defendant
Keith Lindblom QC and James Pereira (instructed by Masons) for the Interested Party
This is a challenge under s.288 of the Town and Country Planning Act 1990 to a decision of the Secretary of State granting planning permission for development on the site of a former gasworks at Harford Street, Stepney. The site is an area of about 3.5 ha on the eastern edge of Stepney adjacent to the Regent's Canal. The western half of the site contains four gas holders and various other buildings, covering about 20% of the land. The land itself is extensively contaminated as a result of its former use. The surrounding area is predominantly residential, with some commercial uses.
The application for planning permission, as amended before the public inquiry, was a full application for permission for redevelopment to provide 407 residential units, a community health centre and other accommodation, with associated access road, open space, landscaping and car parking.
The local planning authority, the London Borough of Tower Hamlets, failed to determine the application within the time laid down. An appeal by the developer, Bellway Urban Renewal Southern, was recovered by the Secretary of State for his own determination. Following a public inquiry the inspector recommended that the appeal be dismissed, but the Secretary of State disagreed with the inspector's recommendation and decided to allow the appeal and to grant planning permission.
The claimant lives near the proposed development. At the public inquiry he gave evidence as part of the Save Stepney Campaign ("SSC"), which was concerned primarily with the retention of the gas holders as historic structures and with the proposals for decontamination of the site. SSC's case with regard to retention of the gas holders was accepted by the inspector and led to his recommendation that the appeal be dismissed. The Secretary of State, however, considered that the arguments in favour of retention of the gas holders were outweighed by the need for the proposed development. No point on that issue is raised in the present proceedings. The challenge relates only to the issue of decontamination.
As to decontamination, SSC argued before the inspector that no proper contamination survey had been undertaken and that there should be an environmental impact assessment ("EIA") before any decision was taken as to the grant of planning permission. The inspector concluded that an EIA was not required. The Secretary of State reached the same conclusion. The central question is whether the Secretary of State acted lawfully in relation to that conclusion: in particular, (i) whether the conclusion was based on a misdirection and/or was unreasonable, and (ii) whether there was an unlawful failure to give reasons for the conclusion.
Legal framework
The relevant regulations are the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Those regulations have been replaced by 1999 regulations in respect of applications made after 15 March 1999. The 1999 regulations are materially the same. Both sets of regulations implement Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment.
Regulation 4(2) of the 1988 Regulations provides:
"The local planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so."
The question in this case is whether the application was one to which the regulation applied. By regulation 4(1), the regulation applies inter alia to any "Schedule 2 application", which is defined by regulation 2(1) in these terms:
"'Schedule 2 application' means … an application for planning permission … for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
It is common ground that the development in this case is of a description mentioned in Schedule 2, namely "an urban development project" (Schedule 2, paragraph 10(b)) and that it is not exempt development. Regulation 4 therefore applies to it if, but only if, it "would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location".
Whether it would be likely to have such effects is a matter for decision by the relevant planning authority, subject to review on Wednesbury grounds: Berkeley v. Secretary of State for the Environment [2001] 2 AC 603, 610 G-H and 614G-615A, R v. Rochdale Metropolitan Borough Council, ex parte Milne [2001] Env LR 406 at 433 para 106, R (on the application of Malster) v. Ipswich Borough Council [2001] EWHC Admin 711 at paras 57–70.
By regulation 5(1), a person who is minded to apply for planning permission may ask the local planning authority to state in writing whether in their opinion the proposed development would be within a description mentioned in Schedule 1 or Schedule 2 and, if so, (a) within which such description and (b) if it falls within a description in Schedule 2, whether its likely effects would be such that regulation 4 would apply. By regulation 5(2), such a request must be accompanied by inter alia (a) a plan sufficient to identify the land and (b) a brief description of the nature and purpose of the proposed development and of its possible effects on the environment. By regulation 5(3) the authority shall, if they consider that they have not been provided with sufficient information to give an opinion on the questions raised, notify the person making the request of the particular points on which they require further information. Regulation 5(4) provides that the authority shall respond to a request within three weeks or such longer period as may be agreed in writing with the person making the request. Regulation 6 contains corresponding provisions as to the giving of pre-application directions by the Secretary of State.
Where it is decided that an application for planning permission is a Schedule 2 application so that regulation 4 applies to it, the obligation in regulation 4(2) is, as indicated, to take the "environmental information" into consideration. "Environmental information" is defined in regulation 2(1) as "the environmental statement prepared by the applicant or appellant …, any representations made by any body required by these Regulations to be invited to make representations or to be consulted and any representations duly made by any other person about the likely environmental effects of the proposed development".
An "environmental statement" is defined as such a statement as is described in Schedule 3, which provides inter alia:
"1. An environmental statement comprises a document or series of documents providing, for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out, the information specified in paragraph 2 (referred to in this Schedule as "the specified information").
2. The specified information is –
(a) a description of the development proposed, comprising information about the site and the design and size or scale of the development;
(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;
(c) a description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference to its possible impact on: human beings; flora; fauna; soil; water; air; climate; the landscape; the interaction between any of the foregoing; material assets; the cultural heritage;
(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects;
(e) a summary in non-technical language of the information specified above."
In R v. Rochdale MBC, ex parte Tew [2000] Env LR 1 at 20, Sullivan J referred to the recitals of an amending directive, 97/11, as containing a convenient summary of the aims and importance of the original Directive: in particular, that it "aims at providing the competent authorities with relevant information to enable them to take a decision on a specific project in full knowledge of the project's likely significant impact on the environment".
In Berkeley Lord Hoffmann, referring to the purposes of the Directive, emphasised the importance of an environmental statement as a means of informing members of the public and enabling them to form their own judgments on, and to express an opinion on, the significance of the environmental issues raised by a proposed development. The context was a failure by the Secretary of State, as decision-maker, to comply with the basic obligation to consider whether an EIA was needed. That was held to be a fatal flaw, irrespective of whether the outcome would have been the same if an EIA had been required or whether the...
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