John Gillespie and First Secretary of State, Bellway Urban Renewal Southern

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Pill, Lord Justice Laws, Lady Justice Arden
Judgment Date27 Mar 2003
Neutral Citation[2003] EWCA Civ 400
Docket NumberCase No: C1/2003/0213

[2003] EWCA Civ 400

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE RICHARDS

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Pill

Lord Justice Laws And

Lady Justice Arden Dbe

Case No: C1/2003/0213

Between
Bellway Urban Renewal Southern
Appellant
and
John Gillespie
Respondent

Keith Lindblom QC, Peter Village QC and James Pereira (instructed by Masons) for the appellant

David Wolfe (instructed by Richard Buxton) for the respondent

Lord Justice Pill
1

This is an appeal by Bellway Urban Renewal Southern ("the appellants") against the decision of Richards J on 20 January 2003 whereby the judge, on the application of Mr John Gillespie, quashed a decision of the Secretary of State (Office of Deputy Prime Minister) dated 30 May 2002. The Secretary of State allowed an appeal by the appellants against a failure of the London Borough of Tower Hamlets to determine an application for development within the appropriate period. The application was for full and not merely outline permission.

2

Planning permission was granted by the Secretary of State for redevelopment, subject to conditions, of the site at Harford Street Gasworks, Stepney E1 for residential development of 407 units, including affordable housing, and associated development including a community health centre and community employment training accommodation. The planning appeal had been recovered by the Secretary of State for his own determination. He decided to allow the appeal, contrary to the recommendation of the Inspector who had conducted a public inquiry in November 1999. Both the appellants and the Secretary of State were granted permission to appeal against the decision of Richards J, by the judge himself, but only the appellants have pursued the appeal.

3

The relevant site is an area of about 3.5 hectares on the eastern edge of Stepney adjacent to the Regent's Canal. The western part of the site contains four gasholders and various other buildings, covering about 20% of the site. The land itself is extensively contaminated as a result of its former use. The surrounding area is predominately residential, with some commercial uses. Mr Gillespie lives near the site and gave evidence at the Inquiry as part of the Save Stepney Campaign ("SSC").

4

In his recommendations, the Inspector stated (page 111):

"There are heavily weighted factors in favour of the proposed development. It would represent an opportunity to build houses on a brownfield site in an area of Inner London where more homes are needed and would help to meet the Government's target for brownfield housing in the South- East of England … . Contaminated land would be remediated and bought back into beneficial use … ."

The Inspector recommended that the appeal be dismissed: "due to the presence of nationally significant gasholders on the site and the policy of both the Government and the Development Plan to preserve such archeologically important features". The Secretary of State took the view that the need for the proposed development outweighed both the presumption in favour of preservation of the archaeological remains and the conflict with the Unitary Development Plan.

5

Richards J quashed the permission on the basis that an Environmental Impact Assessment ("EIA") was required before planning permission was granted. Having been made before March 1999, the application for permission was governed by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, though we were told that the 1999 Regulations are not materially different. The Regulations implement Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain projects on the environment.

6

It is common ground that the proposed development is "an urban development project" as identified in Schedule 2, paragraph 10(b) to the Regulations under the heading "Infrastructure projects". The combined effect of Regulations 2 and 4 is that environmental impact assessment ("EIA") procedures must be followed if, but only if, the "proposed development would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location".

7

This wording reflects the language of Article 2.1 of the Directive and Schedule 2 to the Regulation under the heading "Projects subject to Article 4(2)" reflects Annex 2 to the Directive. That Article provides that projects listed in Annex 2 shall be made subject to an assessment "where member states consider that their characteristics so require".

8

The Secretary of State was required in the present case to make a judgment as to whether this urban development project would be likely to have "significant effects on the environment by virtue of factors such as its nature, size or location". He decided that it did not and Richards J has held the Secretary of State erred in the test he applied.

9

Had the Secretary of State reached a different conclusion, a procedure would have been followed under the Regulations which included a requirement for the applicant for permission to provide an environmental statement as defined in Schedule 3 to the Regulations. The public consultation required by the Regulations would have followed.

10

Schedule 3 to the Regulations provides insofar as is material:

"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."

Paragraph 3 of the Schedule provides that an environmental statement may include further information "by way of explanation or amplification of any specified information". It may include (sub-paragraph (e)) "the likely significant direct and indirect effects on the environment" of the development and "effects" is said to include "secondary, cumulative, short, medium and long term, permanent, temporary, positive and negative effects". That provision also reflects the language of the Directive.

11

Department of the Environment Circular 15/88 gives guidance on the application of the 1988 Regulations. The point for determination on this appeal is not considered in the Circular and detailed reference to its contents is unnecessary. Paragraph 21 provides that:

"It must be emphasised that the basic test of the need for environmental assessment in a particular case is the likelihood of significant environmental effects, and not the amount of opposition or controversy to which the project gives rise, except to the extent that the substance of opponents' arguments indicates that there may be significant environmental issues."

12

The appeal site was acknowledged to include land which was extensively contaminated and the Inspector found that "because of its previous use, the site is obviously contaminated to a significant degree". The case turns on the approach of the Secretary of State to the remediation proposals made by the appellants and their relevance to his judgment as to whether an EIA was required.

13

Policy guidance in relation to contaminated land appears in PPG 23, Planning and Pollution Control, and Department of Environment Circular 7/95 on the use of conditions in planning permissions. They are relevant as part of the context in which the Secretary of State made his judgment. Annex 10 to PPG 23 provides:

"8. However if it is known or strongly suspected that the site is contaminated to an extent which would adversely affect the proposed development or infringe statutory requirements, an investigation of the hazards by the developer and proposals for any necessary remedial measures required to deal with the hazards will normally be required before the application can be determined by the local planning authority. Certain aspects of such investigations, such as drilling boreholes, may require separate planning permission or approval by other statutory authorities. Planning permission may need to include conditions, for example requiring certain remedial measures to be carried out.

9. … .

10. If the information provided by the applicant is insufficient to enable the authority to determine the application, the authority may request further information. Should the degree of contamination be such that remedial action is required to safeguard future users or occupiers of the site or neighbouring land, or protect any buildings or services from the hazards, then planning permission may be granted subject to conditions specifying the measures to be carried out."

14

Circular 11/95 provides, under the heading "Development of Contaminated Sites":

"73. Land formerly used for industrial...

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