R (Bateman) v South Cambridgeshire District Council
| Jurisdiction | England & Wales |
| Judgment Date | 26 March 2010 |
| Neutral Citation | [2010] EWHC 797 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2010 |
| Docket Number | CO/11601/2009 |
[2010] EWHC 797 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Michael Supperstone QC
CO/11601/2009
Mr R Drabble QC and Ms S Blackmore (instructed by Messrs Richard Buxton Solicitors) appeared on behalf of the Claimant
Mr M Lewis (instructed by South Cambridgeshire District Council) appeared on behalf of the Defendant
Mr Robert McCracken QC appeared (at the hearing only) on behalf of the Interested Party
Crown copyright©
THE DEPUTY: This is a renewed application for permission to challenge the grant of planning permission by the defendant, South Cambridgeshire District Council, on 9th July 2009 for an extension to Camgrain Storage Limited's grain storage facility at land adjacent to Wilbraham Chalk Pit, West Wratting, Cambridgeshire, near the claimant's home.
The planning permission is impugned on grounds of alleged failures to comply with the requirements of the Environmental Impact Assessment Regulations of 1999 and the EIA directive. Permission to apply for judicial review was refused on the papers by Mr George Bartlett QC, sitting as a Deputy High Court Judge.
Mr Lewis, for the defendant, and Mr McCracken QC for Camgrain, the interested party, invite me to dismiss the claim on the basis it is out of time and in any event not made promptly. They submit that the claim form filed on 7th October 2009, and near the end of the three month period, did not contain a detailed statement of grounds and a statement of facts relied on as required by CPR 54.6. Mr Drabble QC, for the claimants, refers me to section 5 of the claim form, where it is stated:
“An outline of grounds is set out in the attached pre-action protocol letter. Full statement of facts and grounds to follow.”
and he refers to section 8, where it says:
“Statement of facts will be provided later. The defendant and interested party are fully aware of the facts, and the grounds as set out in the attached pre-action protocol letter sufficiently summarise the legal basis for the claim.”
Mr Drabble submits that the effect of those words and the attachment is that the material facts and grounds, which were set out in the pre-action protocol letter, are expressly incorporated into the claim form.
In my view, a detailed statement of grounds and a statement of facts relied on should be set out in the body of the claim form. This was not done. However, I accept the claim as lodged specified with reference to the pre-action protocol letter a summary of the grounds and relevant facts, the particularisation of which was adequate. In the circumstances, I do not consider the claim form to be defective such that I should rule it was not a valid claim form properly submitted in time. Nothing I have said though should be taken to encourage a practice of completing sections 5 and 8 of the claim form by reference to a pre-action protocol letter or any other document.
Following the recent decision of the ECJ in Uniplex UK Ltd v NHS Business Services Authority, Mr Lewis and Mr McCracken do not persist with the submission that previously was available to them with regard to promptitude and was the position when the learned judge made his decision, save that Mr McCracken makes the point that Uniplex does not affect the considerations which have led the Court of Appeal to emphasise the importance of timeliness in judicial review of planning permissions. The screening opinion was made two and a half months before the decision that was challenged but I do not dismiss the claim on that ground in circumstances where there is an issue as to when the claimants as a matter of fact knew of the screening opinion. Accordingly, I do not reject the claim on the basis it is out of time and by reason of delay.
Turning then to the substantive challenge, this, says Mr Drabble, is a rural area faced with an application for a 300 per cent increase from 90,000 tonnes to 300,000 tonnes of grain storage. There will be environmental impacts, particularly landscape (60 large silos and a 3,000 square metre extension), traffic (substantial increase in HGV movements for the peak in flow at harvest time, 650 metres from the A11) and noise impacts. Mr Drabble says this is a very large grain storage proposal. It will have an urbanising industrialising effect on the immediate agricultural area. Mr Drabble submits what is in issue is whether the defendant adequately screened the likely effects of what it stated was major development when deciding that EIA was not required and thus that those effects were not significant.
The first three grounds of challenge all relate to inadequate screening. The screening, it is said, was inadequate (grounds 2 and 3) and Government advice irrationally applied in carrying out the screening exercise (ground 1).
The screening opinion of Ms Lorraine Casey, senior planning officer of the defendant, dated 17th April 2009 is at page 131 of claim bundle volume 1. It contains five paragraphs and then concludes with the sentence:
“In view of the above, the proposal is not considered to be EIA development.”
Mr Drabble submits that the reasons given for the conclusion are inadequate. In summary, Mr Drabble makes four points. First, her analysis in paragraph 2 as to whether the size of the development meant that she should consider the scheme on the basis of guidance within paragraph A17 industrial estate, or A19 urban development project (or, perhaps better, urbanising development project) is irrational. Thus it provides no basis for her subsequent conclusion. Second, her paragraph 3 is irrelevant. Third, her paragraph 4 is fatally flawed. She stated that the likely effects would be in transport, landscape and noise but then notes that such assessments “are to be provided with the application”. She did not take into account any of the assessments which were actually before her. Fourth, her conclusion is then stated in paragraph 5. There are no reasons stated in paragraph 5 for those conclusions. What she needed to do was assess whether or not this site was likely to have significant environmental effects. Simply reciting the criteria does not shed any light on her reasoning in relation to the specific impacts of transport, landscape and noise on this specific site and is as flawed as the vice identified in Mellor.
This development is agreed to be schedule 2, paragraph 10 development. Thus, says Mr Drabble, the starting point is whether or not there is likely to be significant environmental effects. Instead, the starting point adopted by the defendant's planning officer was to examine the size of the development and then consider whether the size of the facility meant it fell within paragraph A17, industrial estate, or paragraph A19, urban development project, of circular 02/99. Mr Drabble says this is wrong. He submits the logical starting point would be to first consider whether a development is in fact an industrial estate development project (paragraph 10(a) of schedule 2, EIA regulations) or an urban development project (paragraph 10(b) within the regulations). He says there is no such discussion anywhere in the screening opinion or the planning officer's reasons. There is then no discussion as to whether the guidance in paragraph A17 or A19 better fits this development. The only factor considered is size, yet one cannot use the size of a development to distinguish between whether it is an industrial estate or an urban development project. Thus, Mr Drabble submits, the reason given is not a rational reason to distinguish between paragraph A17 and A19 and is not defended as such by the defendant or interested party.
Mr Drabble submits that this error is compounded because the planning officer stated that the smaller guidance limit for urban development project in circular 02/99 applied, particularly to previously undeveloped sites and thus she should consider the larger size threshold for industrial estates. This is wrong, submits Mr Drabble, for two reasons: first, again the size limit given in the guidance is not a reason to distinguish between whether something is an industrial estate or an urban development project; second, the majority of this site is undeveloped agricultural land, so there is no reason to distinguish on this basis.
I do not accept that these criticisms provide the claimants with an arguable case on the present challenge. Even if the defendant's planning officer adopted a rather rough and ready approach, as Mr Lewis concedes she did, in considering the application proposal against the paragraph A17 threshold, she nevertheless concluded that the proposed development would not be likely to have a significant effect on the environment. Mr Lewis and Mr McCracken argue that the development could, as a matter of law, only be regarded as schedule 2(10)(a) industrial estate development, which is covered in circular 02/99 by paragraph A17.
Whether this is correct nor not, in my view there was nothing wrong in the planning officer taking the view that it was appropriate to judge the application proposal against the higher threshold in paragraph A17 rather than paragraph A19 and nothing irrational about her conclusion. In any event, as Mr McCracken observed, it is accepted by Mr Drabble that it does not in fact matter whether the proposal falls within paragraph 10(a) or 10(b) of Schedule 2. What matters is whether the development is likely to have a...
To continue reading
Request your trial
-
R Loader v Secretary of State for Communities and Local Goverment and Others
...likely to have" in the Directive and Regulations means no more than that there is a serious possibility of it happening. In R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157, Moore-Bick LJ, with whom Jackson LJ agreed, stated, at paragraph 17: "In my view something more than a bare ......
-
Barbara Burridge v Breckland District Council Greenshoots Energy Ltd (Interested Party)
...had requested a further screening opinion in this case. 39 The decision in Mellor was considered in this court in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157, also concerned mainly with the screening opinion itself. The remedy available when a screening opinion ......
-
Bowen-West v Secretary of State for Communities and Local Government (1st Respondent) Northamptonshire County Council (2nd Respondent) Augean Plc (3rd Respondent)
... ... that the term "likely" in the regulation means "possible": see R(Bateman) v South Cambs DC & Ors [2011] EWCA Civ 157 ... ...
-
R Loader v Secretary of State for Communities and Local Goverment and Others
...environment. (See paragraphs 88–92). 41 More recently, the issue has been considered by the Court of Appeal once again in R (Bateman) v South Cambridgeshire D.C. [2011] EWCA Civ. 157. It is a curious feature of that case that Mr Richard Drabble QC on behalf of the Claimant advanced the ver......