R James Kenyon v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 18 December 2018 |
| Neutral Citation | [2018] EWHC 3485 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/424/2017 |
| Date | 18 December 2018 |
[2018] EWHC 3485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/424/2017
Marc Willers QC and Paul Stookes (instructed by Richard Buxton Solicitors) for the Claimant
Carine Patry (instructed by the Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 22 November 2018
Approved Judgment
On 27 January 2017, the Claimant applied for judicial review of a direction by the Defendant, made on 16 December 2016, under regulation 4(3) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”), that proposed development at the disused Hemsworth Sports Complex, Hemsworth, Pontefract, West Yorkshire (hereinafter “the Site”) was not EIA development within the meaning of regulation 2 of the 2011 Regulations, and so an environmental statement to assess the environmental effects of the development was not required.
The Claimant is a local resident, who is concerned by an application by the Third Interested Party (“the developer”) to the First Interested Party, (hereinafter “the Council”), for outline planning permission for a development of 150 homes at the Site, because of its potential environmental impacts, among other reasons. In particular, residents at the new development are likely to use cars, which will increase air pollution levels locally. Furthermore, the land is partially contaminated because the Site (a former brickworks quarry) was used for landfill, and other purposes.
The application for outline planning permission was made in January 2008 and it was granted by the Council on 24 November 2010. It was quashed by the High Court on 14 February 2012, because of the failure to carry out an EIA screening opinion. On 20 May 2013, the Council issued a negative EIA screening opinion and, on 5 September 2013, the Council again resolved to grant outline planning permission. On 31 March 2016, the Council granted a second permission, although on 1 July 2016, in a second claim for judicial review, the second grant of outline planning permission was quashed by consent.
On 5 September 2016, the Claimant applied to the Defendant for a screening direction, under regulation 4(8) of the 2011 Regulations. His solicitor Dr Paul Stookes, provided lengthy submissions and evidence in support of the application. On 21 November 2016, Wakefield Council again issued a negative screening opinion. On 16 December 2016, the Defendant made a screening direction, concluding that the proposal met the applicable criteria for an urban development project under paragraph 10(b) of schedule 2 to the 2011 Regulations, but it was not EIA development because it was not likely to have significant effects on the environment, applying the criteria in schedule 3.
The Claimant challenged the Defendant's decision on the following grounds, as pleaded in his ‘Detailed Statement of Facts and Grounds’:
i) The Defendant failed properly to consider the cumulative environmental effects of the proposal in his screening direction;
ii) The Defendant placed undue reliance upon conditions in an attempt to remedy the adverse environmental effects which were likely to arise from the proposal;
iii) The Defendant failed to consider other relevant environmental matters relevant to the proposal, including loss of woodland, open space and recreation areas; flood risk; and the increase in greenhouse gas emissions generated by the new homes.
On 15 August 2018, Sir Ross Cranston (sitting as a High Court Judge), granted the Claimant permission to apply for judicial review on ground 1 to the “limited extent indicated below”, which related only to air quality. The Judge refused permission on grounds 2 and 3. The Claimant did not challenge the Judge's decision on ground 1, but made a renewed application for permission on grounds 2 and 3, which was listed to be heard on the same occasion as the substantive hearing. However, the Claimant abandoned ground 3 at the commencement of the hearing. I considered ground 2 on a rolled-up basis, together with ground 1.
The legal framework
The EIA Directive 2011/92/EU was implemented in the UK by the 2011 Regulations, which governed the procedures to be followed in determining this application, as the application pre-dated the coming into force of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.
“EIA development” is defined in regulation 2(1) as being either “Schedule 1 development” or “Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”.
Regulation 4 stipulated when development is to be treated as “EIA development”:
“(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.
(2) The events referred to in paragraph (1) are—
(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development.
(4)
(a) The Secretary of State may direct that these Regulations shall not apply in relation to a particular proposed development specified in the direction either—
(i) in accordance with Article 2(3) of the Directive (but without prejudice to Article 7 of the Directive), or
(ii) if the development comprises or forms part of a project serving national defence purposes and in the opinion of the Secretary of State compliance with these Regulations would have an adverse effect on those purposes;
(b) Where a direction is given under paragraph (4)(a) the Secretary of State must send a copy of any such direction to the relevant planning authority.
(5) Where a direction is given under paragraph (4)(a)(i) the Secretary of State must—
(a) make available to the public the information considered in making the direction and the reasons for making the direction;
(b) consider whether another form of assessment would be appropriate; and
(c) take such steps as are considered appropriate to bring the information obtained under the other form of assessment to the attention of the public.
(6) 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.
(7) Where a local planning authority adopts a screening opinion under regulation 5(5), or the Secretary of State makes a screening direction under paragraph (3)—
(a) that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and
(b) the authority or the Secretary of State, as the case may be, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (a) to the person who proposes to carry out, or who has carried out, the development in question.
(8) The Secretary of State may make a screening direction either—
(a) of the Secretary of State's own volition; or
(b) if requested to do so in writing by any person.
(9) The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of “Schedule 2 development” is satisfied in relation to that development.
(10) The Secretary of State shall send a copy of any screening direction and a copy of the written statement required by paragraph (7)(a) to the relevant planning authority.”
By regulation 5, the applicant for planning permission may request the local planning authority to adopt a screening opinion. The authority has 21 days to provide the opinion (or a longer period as may be agreed). The applicant may ask the Secretary of State to make a screening direction if the local planning authority does not adopt a screening opinion within the specified timescales, or if they determine that the proposed development is “EIA Development”.
Schedule 3 to the 2011 Regulations identifies three criteria which may be relevant to a particular development:
(i) Characteristics of development;
(ii) Location of development; and
(iii) Characteristics of the potential impact.
Paragraph 1 of Schedule 3 provides:
“ Characteristics of development
The characteristics of development must be considered having regard, in particular, to—
(a) the size of the development;
(b) the cumulation with other development;
(c) the use of natural resources;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of accidents, having regard in particular to substances or technologies used.”
Paragraph 2 of Schedule 3 provides as follows:
“ Location of developmentThe environmental sensitivity of geographical areas likely to be affected by development
must be considered, having regard, in particular, to—
(a) the existing land use;
(b) the relative abundance, quality and regenerative...
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James Kenyon v The Secretary of State for Housing Communities & Local Government
...application for judicial review of that screening direction was refused by Mrs Justice Lang DBE (“the judge”) on 18 December 2018 ( [2018] EWHC 3485 (Admin)). The appellant appeals against that decision with leave of Lindblom 2 The arguments on appeal ranged far and wide and included, some......