R (Dicken) v Aylesbury Vale DC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Richards,Lord Justice Mummery |
| Judgment Date | 13 July 2007 |
| Neutral Citation | [2007] EWCA Civ 851 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 July 2007 |
| Docket Number | Case No: C1/2007/0673 |
[2007] EWCA Civ 851
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HER HONOUR JUDGE HAMILTON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Laws and
Lord Justice Richards
Case No: C1/2007/0673
Mr R Clayton QC (instructed by Messrs Richard Buxton) appeared on behalf of the Appellant.
Mr C Boyle (instructed by Aylesbury Vale District Council) appeared on behalf of the First Respondent.
Mr J Maurici (instructed by Messrs Thring Townsend) appeared on behalf of the Second Respondent.
This is a renewed application for permission to apply for judicial review following refusal at an oral hearing before HHJ Hamilton QC sitting as a High Court judge in the Administrative Court on 5 March 2007. The judge reserved her reasons which were given in a judgment delivered on 22 March. Dyson LJ refused permission to appeal to this court on consideration of the papers on 2 May 2007.
The judicial review challenge was prospectively directed against a planning permission granted on 25 or 26 May 2006 to the interested party, Kinsale Agriculture, by the Aylesbury District Council for the erection of three buildings for egg production, in effect a chicken farm, and the temporary siting of a mobile home at Norduck Farm, Moat Lane, Aston Abbotts, Buckinghamshire. The site covers some 147 hectares. It is in an area of attractive landscape. The current use of the land is for agriculture, including the grazing of horses. The proposal is to house some 6000 chickens. It will incorporate what is called the “oli-free roosting system”, whose effect is to prevent, so it is said, the build up of chicken waste and to keep the environment free of odour, flies and vermin. During the hours of daylight the chicken flocks will graze on grassland.
The applicants live close to the proposed development; a distance of some 200 metres is referred to in the evidence but I understand the exact distance to be a matter of some controversy. The access track to the proposed poultry houses is shared by two of the applicants. We were told this morning that the third, Mr Roberts, lives on the corner of the track.
The respondent local planning authority initially resolved to grant planning permission on 15 September 2005, but there followed objections complaining of the lack of an environmental impact assessment (EIA) within the meaning of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”). The 1999 Regulations, as is well known, transpose the EIA Directive 85/337 into national law. The proposed chicken farm is classified as an intensive agricultural installation, though there was some doubt within the local planning authority as to whether that was an appropriate classification. If so, it is covered by Schedule 2 to the 1999 Regulations. In those circumstances the local planning authority had to decide whether the development was:
“likely to have significant effects on the environment by virtue of factors such as its nature, size and location.”
If it was, then the development would be categorised as EIA development, in which case an EIA leading to what is called an environmental statement would be required.
The 1999 Regulations, Schedule 2 paragraph 1, require that any intensive livestock installation with new floor space exceeding 500 square metres should be screened to ascertain the necessity for an EIA. A screening process was undertaken and on 8 February 2006 a screening decision was made to the effect that no EIA was required. The decision followed a screening opinion prepared by members of the relevant council committee. In due course planning permission was granted without an EIA, as I have said on 25 or 26 May 2006.
Before coming to the terms of the screening opinion I should note that the interested party, Kinsale Agriculture, operates other similar organic poultry farms in two other counties and yet another in New Road, Dinton, Aylesbury. The farm at New Road is much smaller than the proposed operation but there was also incorporated there the oli-free system. The committee members who were to frame the screening opinion visited New Road, and as I understand it observed the system in operation. The system had undergone a three-year field trial at New Road and the interested party says that it has been in use since about 1989 in Sweden, Finland, Norway, Germany, Switzerland, Luxembourg and the Netherlands. But that evidence was not, as Mr Clayton has been at pains to emphasise before us this morning, before the local planning authority at the time of the relevant decisions.
The screening opinion contains these passages. Paragraph 1e:
“Pollution and nuisance—the operation, if poorly managed, has the potential to cause smell and ground water contamination nuisance locally. The application proposes a system of operation and management which minimises both these aspects. A similar scheme, albeit smaller, is in operation at Dinton and no complaints have been received by the Council. It is not considered that the additional scale of development proposed is likely to increase the potential for this type of impact. Given the scale of the proposal and the operating method proposed, no substantive impact has been identified.”
Paragraph 3:
“ Characteristics of Potential Impact
Extent of impact—it is considered that the proposal, if not operated as proposed in the application, would have the potential to cause intermittent local smell impacts beyond the site boundary. However, there is no evidence to suggest that the operating system proposed would cause any such substantive impacts.”
Then the number paragraph 3 is repeated, but the heading is “Conclusion and Recommendation”:
“The site is not in an environmentally sensitive location as defined by the regulations, nor is the location environmentally sensitive within the ordinary meaning of these words; the proposal includes full details of an operating system to control and manage pollution nuisance from smell and ground water contamination. Traffic levels resulting from the proposal are very low and the visual impacts of the buildings would be limited and would be mitigated against. The relevant issues have been addressed in the submitted application.
“It is considered that no environmental impact assessment should be sought.”
The prospective challenge which Mr Clayton QC seeks leave to launch falls under three heads:
(1) On the facts an EIA was required by law and the screening opinion perpetrated errors of law.
(2) There was a failure to have regard to material considerations in the grant of planning permission itself.
(3) The local planning authority are also in error in failing to take account of the proposal's impacts on the applicant's property rights: the reference is to a projected fall in property values if the development goes ahead.
HHJ Hamilton found against the appellants on all three points.
I turn to the first of these arguments: the screening opinion and the need for an EIA. The requirement for an EIA has most recently been considered by this court in Catt [2007] EWCA Civ 298. The leading judgment was given by Pill LJ who also gave the first judgment in Gillespie [2003] 2 P&CR 236. At paragraph 26 in Catt Pill LJ cited the judgment of the European Court of Justice v World Wildlife Fund [2001] Common Market Law Reports 149 (paragraph 45) as follows:
“An EIA is required 'unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects' [significant effects on the environment].”
Then at paragraph 29 Pill LJ cited a passage from my judgment in Gillespie, which I shall quote partly because it has been the subject of some discussion by Mr Clayton this morning and partly because it sets part of the context of Pill LJ's later observations in Catt. Here is the passage:
“Prospective remedial measures may have been put before him (the Secretary of State) whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA.”
Pill LJ's conclusions in the case of Catt are set out at paragraphs 33 to 37 inclusive:
“33. This is a very different development from that proposed in Gillespie. Developments come in all forms and the approach to the screening opinion must have regard to the development proposed. There will be cases, such as Gillespie, where the uncertainties present, whether inherent or sought to be resolved by conditions, are such that their favourable implementation cannot be assumed when the screening opinion is formed.
“34. On the other hand, there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence. There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion. It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required. An assessment, which...
To continue reading
Request your trial
-
Matthew Champion v North Norfolk District Council (Defendant (1st Claim) Natural England (Defendant (2nd Claim) Crisp Maltings Group Ltd (Interested party)
...Assessment is required is one for the relevant authority, subject to the irrationality or Wednesbury test. This appears from: R(Dicken) v Aylesbury Vale DC [2007] EWCA Civ 851; [2008] Env LR 20 at paragraph 16 "it is to be borne in mind that the test for the judicial review court is the i......
-
R (Catt) v Brighton and Hove City Council
...was followed by the Court of Appeal in refusing permission for a challenge to proceed in R (Dicken & Ors) v Aylesbury Vale DC & Anr [2007] EWCA Civ 851, another screening opinion 10 The case for the applicant, however, is that Catt 1 is out of line with previous domestic and EU case law an......
-
R (Morge) v Hampshire County Council
...In this case, the mitigating measures were tried and tested measures commonly adopted for difficulties of this kind." 116 In R (Dicken) v. Aylesbury Vale DC [2007] EWCA Civ 851 Laws LJ (with whom Richards and Mummery LJJ) agreed) stated (at paragraph 16): "It is to be borne in mind that th......
-
R (Morge) v Hampshire County Council
...both parties, reference was made to the authorities, for example, R (Jones) v Mansfield DC [2003] EWCA Civ 1408 per Dyson L.J., R (Dicken) v Aylesbury Vale DC [2007] EWCA Civ 851 per Laws L.J., R (Miller) v North Yorkshire CC [2009] EWHC 2172 (Admin) per Hickinbottom J. and Ecologistas e......