R (Bateman) v South Cambridgeshire District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Jackson,Lord Justice Mummery |
| Judgment Date | 22 February 2011 |
| Neutral Citation | [2011] EWCA Civ 157 |
| Docket Number | Case No: C1/2010/0771 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2011 |
[2011] EWCA Civ 157
(Mr. Michael Supperstone Q.C.)
Before: Lord Justice Mummery
Lord Justice Moore-bick
and
Lord Justice Jackson
Case No: C1/2010/0771
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr. Richard Drabble Q.C. and Ms. Sasha Blackmore (instructed by Richard Buxton) for the appellant
Mr. Meyric Lewis (instructed by South Cambridgeshire District Council) for the respondent
Mr. Robert McCracken Q.C. (instructed by Kester Cunningham John) for the interested party
Hearing dates: 14 th January 2011
Lord Justice Moore-Bick:
This is a claim for judicial review which Sullivan L.J. directed should be retained in this court following the grant of permission to proceed made on an application for permission to appeal. The claimants, Dr. and Mrs. Bateman, seek an order quashing a grant of planning permission by South Cambridgeshire District Council ("the Council") in favour of Camgrain Storage Ltd ("Camgrain") for the extension of a grain storage and handling facility situated near the village of West Wratting close to the A11 trunk road. The grounds on which they seek that relief are that the decision of the Council's planning officer contained in a screening opinion issued on 17 th April 2009 that an environmental impact assessment ("EIA") was not required in respect of the proposed development failed to comply with the requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) 1999 Regulations ("the Regulations") and that the grant of planning permission was therefore unlawful.
Camgrain is an agricultural co-operative established as an industrial and provident society. Between 2008 and 2009 it constructed a new storage facility comprising 12 silos and associated buildings with the capacity to handle 90,000 tons of grain on a site next to Wilbraham chalk pit. The business proved very successful and by early 2009 Camgrain had already developed plans to expand the store at West Wratting to create an advanced storage and processing centre capable of handling 300,000 tons of grain. That involved the construction of 60 additional silos, 6 additional holding bins and 4 additional bulk bins. Each of the metal silos is about 18 metres high and about 23 metres in diameter, but the site had been levelled by cutting back into the hillside, and it was proposed that the visual impact of the development would be further reduced by planting new trees and other landscaping measures. Grain would be carried to and from the facility in lorries, being taken in during the harvest and despatched at intervals over the rest of the year. The proposed expansion would therefore inevitably cause a large increase in the number of lorry movements over the course of each year.
The Regulations implement the provisions of Council Directive 85/337/EEC on assessing the effect on the environment of certain development projects. Regulation 5(1) provides that a person who is minded to carry out development may request the planning authority to adopt a screening opinion, that is, a written statement of the opinion of the authority whether an EIA is required. An EIA is required in the case of any development falling within Schedule 1 to the Regulations and any development falling within Schedule 2 which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location: see Regulation 2(1). It is common ground that the proposed development falls within Schedule 2. The critical question, therefore, is whether it was likely to have significant effects on the environment and in reaching its decision on that question the planning authority was required to have regard to the criteria set out in Schedule 3. These include the size of the development, the cumulation with other development and the environmental sensitivity of the geographical areas likely to be affected.
On 12 th March 1999 the Secretary of State for the Department for Communities and Local Government published Circular 02/99 giving guidance to local planning authorities on the implementation of the Regulations. Paragraphs 33 and 34 of the Circular have assumed some importance in this case. They provide as follows:
"33. As a starting point, authorities should study Schedule 3 to the Regulations (reproduced at Annex B to this Circular) which sets out the 'selection criteria' which must be taken into account in determining whether a development is likely to have significant effects on the environment. Not all of the criteria will be relevant in every case. It identifies three broad criteria which should be considered: the characteristics of the development (eg its size, use of natural resources, quantities of pollution and waste generated); the environmental sensitivity of the location; and the characteristics of the potential impact (e.g. its magnitude and duration). In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:
a. for major developments which are of more than local importance (paragraph 35);
b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36–40); and
c. for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41–42).
34. The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment."
By letter dated 27 th March 2009 Savills applied to the Council on behalf of Camgrain for a screening opinion in relation to the proposed development. The letter and its appendices contained a description of the development, including drawings and site plans. Savills submitted that it was not of more than local importance, was not in an environmentally sensitive or vulnerable location and was not unusually complex and did not give rise to potentially hazardous environmental effects. They then addressed in detail the criteria set out in Schedule 3 to the Regulations and suggested that the main impact of the proposed development was likely to be in landscape and transport terms, which would be addressed through the necessary landscape and transport assessments when the planning application was submitted. An application was in fact submitted on 9 th April 2009.
On 17 th April 2009 the Council replied stating that in its opinion the proposed development would not be likely to have significant effects on the environment and that an EIA was not required. The letter was accompanied by a statement from a Senior Planning Officer giving the following reasons for the decision (with numbering added for ease of reference):
"1. The site lies within the countryside and beyond the West Wratting village framework, as defined in the South Cambridgeshire Local Development Framework 2007. The proposed application site, as enlarged, extends to 11.3 hectares, and the proposal involves the creation of an additional 210,000 tonnes of storage (60 new storage silos), a 3000m 2 extension to the flatstore facility, new holding bins and plant house and driers.
2. The size of the facility, as extended, exceeds the 5 hectare and 10,000m 2 limits suggested within paragraph A19 of Annex A of Circular 02/99. However, these suggested limits particularly apply to previously undeveloped sites. It may therefore be more appropriate to consider the threshold suggested within paragraph A17, which states that an EIA is more likely to be required if the site exceeds 20 hectares, in which case the site, as extended, would be well under this threshold.
3. The site is not within the floodplain or in an area of high-medium flood risk, no public right of way is affected by the proposal, and there are no Tree Preservation Orders within the site. In addition, the proposal does not affect a Scheduled Ancient Monument and the development is not within an environmentally sensitive area.
4. The main impacts of the development are likely to be: increase in traffic movements, landscape impact, and noise disturbance to nearby residents. Transport, Landscape and Noise Assessments are to be provided with the application.
5. Having regard to the selection criteria in Schedule 3 to the Regulations, particularly noting the size of the development, cumulation with the existing development and potential impact, it is considered that this major development will not have more than local importance, will not be proposed for a particularly environmentally sensitive or vulnerable location, and will not have unusually complex and potentially hazardous environmental effects."
Planning permission for the development was subsequently granted on 9 th July 2009, subject to certain conditions.
Mr. Drabble Q.C. for the claimants submitted that the screening opinion should be quashed...
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