R (Catt) v Brighton and Hove City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Maurice Kay,Lord Justice Wilson |
| Judgment Date | 25 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1417,[2007] EWCA Civ 298 |
| Docket Number | Case No: C1/2009/1357,Case No: C1/2006/1443 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 2009 |
[2007] EWCA Civ 298
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMIN ISTRATIVE COURT
MR JUSTICE COLLINS
CO86702005
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Maurice Kay and
Lord Justice Wilson
Case No: C1/2006/1443
MR WILLIAM UPTON (instructed by Richard Buxton Esq) for the Appellant
MISS MARY MACPHERSON (instructed by Brighton and Hove City Council) for the Respondent
MR JONATHAN CLAY (instructed by D M H Stallard Esq) for the Interested Party
Hearing date: 20 February 2007
This is an appeal against a judgment of Mr Justice Collins, given on 15 June 2006, whereby he refused the application of Mr John Catt to quash a decision of Brighton and Hove City Council (“the Council”) granting a planning permission to Brighton and Hove Albion Football Club (“the Club”) on 20 July 2005. The Club play association football, in League Division 1, at Withdean Stadium, Tongdean Lane, Brighton, under a temporary planning permission.
The decision permitted the continued use of the stadium until 30 June 2008 and the provision of new stands and extension of existing stands to provide an additional 1966 seats, increasing the capacity of the stadium to about 9,000. Replacement and relocation of a hospitality unit was permitted, as were the addition of purpose built changing rooms and the addition of a stewards' room, club office and new turnstiles. Permission was granted to the Club to play the first match in December on a Saturday [other Saturdays in December excluded], to play up to nine evening matches and up to three matches per season on a Sunday. A permission was also granted with respect to the existing athletics' clubhouse and facilities at the stadium.
The stadium is within the urban fabric of Brighton. The appellant lives in a cul-de-sac on the west side of the stadium and suffers significant disturbance as a result of crowds attending football matches.
Use of the stadium by the Club is intended as a temporary measure until the Club have obtained an alternative home. A site has been located at Falmer but, as yet, there is no permission to develop it. An earlier permission was quashed by consent upon challenge being made.
A temporary permission at Withdean was granted in 1998 and another in November 2002. The current permission, if upheld, subsists until 30 June 2008. Comprehensive conditions are attached to the permission as to the number of matches which may be played, when they may be played, when amplified sound, including music, may be played, which did include Sussex by-the-Sea at the end of half time, and when floodlights may be used. Provision is made for disabled car parking spaces and additional bicycle parking spaces, amongst other things. Some of the conditions are said to be imposed “in the interests of the residential amenities of the locality.”
The submission made by Mr Upton on behalf of the appellant is that the permission was unlawful because it was granted without an Environmental Impact Assessment (“EIA”) having first been made under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”). The Regulations were made pursuant to Section 71(A) of the Town and Country Planning Act 1990 (“the 1990 Act”), having taken into account Council Directive 85/337/EEC, as amended.
Application for planning permission was made on 14 February 2005. On 4 March 2005, the Council decided that an EIA was not required for the proposed development. It is common ground that the development is Schedule 2 Development within the meaning of the 1999 Regulations. Regulation 2(1) of the 1999 Regulations provides:
“ 'EIA development' means development which is either – (a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;”
Paragraph 13 of Schedule 2 to the Regulations includes among Schedule 2 developments any proposed change to or extension of authorised development where the change or extension may have significant adverse effects on the environment.
Regulation 4(5) provides:
“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.”
The criteria in Schedule 3 are set out under the headings “Characteristics of development”, “Location of development”, and “Characteristics of the potential impact”. Having regard to the points taken on this appeal, it is not necessary to set them out fully. Under the heading “Characteristics of the potential impact”, the decision maker must have regard in particular to matters which include the extent of the impact (geographical area and size of the affected population) and the duration, frequency and reversibility of the impact.
On 4 March 2005, the Council gave a screening opinion, that is (per Regulation 2(1)), a written statement of opinion as to whether development is EIA Development. The opinion was to the effect that the development was not such development. If an EIA is required, planning permission must not be granted unless the decision maker has first taken into consideration the environmental information (Regulation 3). That means taking into consideration an environmental statement prepared in accordance with Regulation 2(1) of and Schedule 4 to the Regulations.
The opinion of the Council was based on their Development Control Manager's conclusion:
“Brighton and Hove Albion's use of Withdean Stadium undoubtedly has some impact upon the surrounding residential area. However, that impact is limited in frequency and the development is proposed to be for a limited period. The impact can be considered to take place over a fairly sizeable area including related traffic and pedestrian movements but diminishes rapidly with increased distance from the Stadium. There are no significant polluting or natural resource implications. No features of recognised natural or man-made importance would be significantly affected by the proposal. The Football Club have put in place stewarding measures and sustainable transport arrangements to reduce any impact upon the surrounding area.
From the above considerations it is concluded that, although the proposal is Schedule 2 development, significant effects on the environment will not occur. The recommendation is that the Local Planning Authority adopts a formal screening opinion that EIA is not required for the proposed development contained within [the] planning application …”
On 18 May 2005, the Council's appropriate committee resolved that it was minded to grant permission, subject to the Club entering into an agreement, under Section 106 of the 1990 Act, to secure traffic mitigation measures and other safeguards. The Club were required to continue to operate a stewarding plan on the approaches to the stadium, with litter patrol, the stewards to operate a cordon. An attended telephone service was required on matchdays to deal with any complaints.
The agreement under Section 106 was made between the Council and the Club on 19 July 2005. On the following day, the document constituting the permission was issued and, in addition to the conditions already mentioned, included reasons for the grant:
“The Council recognises that the applicant [the Club] plays a large role in the local community and economy. An important consideration is the need to find a temporary solution to the difficulties faced by the applicant in finding a permanent venue for home football matches. Against this, another major consideration is the significant disturbance which matchdays can cause to surrounding residents. The Council believes on balance that permission should be given to allow home football matches to be played at Withdean until 30 June 2008, to protect the interests of the applicant until permission can be obtained for a permanent venue. The Council believes that impacts on residential amenity on matchdays (approximately 25–30 occasions per year) can be minimised through conditions. The impact of football matches on the use of the stadium by athletics clubs is also considered acceptable in view of conditions imposed.
Matchdays clearly cause significant disturbance to the surrounding residents and this impact is the main issue for consideration. Many objections have been received on a variety of grounds relating to the impact of the club's activities upon the surrounding residential area. A substantial number of letters of support have been received stressing the importance of the club to the city.
A range of transport measures have been in place for several years and have proved relatively successful. Further investigation of a residents parking scheme can be made to address parking within the cordon and additional measures can be sought to address the proposed additional seats. Environmental Health are satisfied that noise issues can be addressed through appropriate conditions. The frequency and duration of matches is very limited. Athletics facilities will be retained and enhanced. The proposed structures generally have a temporary [sic]
The Local Planning Authority will consult with the Safety Advisory Group in assessing any submissions in accordance with condition...
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