R (Jones) v Mansfield District Council

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Dyson, Lord Justice Carnwath, Lord Justice Laws
Judgment Date16 Oct 2003
Neutral Citation[2003] EWCA Civ 1408
Docket NumberCase No: C1/2003/0212

[2003] EWCA Civ 1408

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(Mr Justice Richards)

Before:

Lord Justice Laws

Lord Justice Dyson and

Lord Justice Carnwath

Case No: C1/2003/0212

Between:
The Queen on the Application of Jones
Appellant
and
Mansfield District Council And Another
Respondent

Mr David Wolfe of Counsel (instructed by Public Interest Lawyers) for the Appellant

Mr John Steel QC and Ms Sarah Jane Davies of Counsel (instructed by Messrs Brown Jacobson) for the Respondent

Lord Justice Dyson

Introduction

1

Dawn Jones lives adjacent to a 28.4 hectare site which at the present time is open countryside. On 5 November 2001, Mansfield District Council, the local planning authority ("the council"), determined to grant outline planning permission for the use of the site as an industrial estate. By a claim form dated 17 December 2001, Ms Jones challenged the legality of this decision on the basis that it had been reached without proper consideration of whether an Environmental Impact Assessment ("EIA") was required before permission could be granted. The council agreed to reconsider the question of whether an EIA was needed. On 25 February 2002, its planning committee considered two reports from the Head of Planning and Building Controls. These were (a) a report again recommending that an EIA was not required ("the first report"); and (b) a report recommending that outline planning permission be granted for the industrial estate ("the second report"). At its meeting of 25 February 2002, the planning committee determined that an EIA was not required and that planning permission should be granted. By these proceedings, Ms Jones challenges both decisions, contending that the second was unlawful by reason of the flaw in the first. In a judgment delivered on 20 January 2003, Richards J dismissed her application for judicial review. He concluded that the council's decision not to require an EIA was reasonable and lawful, so that the challenge to the grant of planning permission also failed. Ms Jones appeals with the permission of Laws LJ.

Legal framework

2

The application for planning permission was made on 15 October 1998. Accordingly, the relevant regulations are the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 ("the Regulations"). The Regulations implement Council Directive 85/337/EEC of 17 June 1995 on the assessment of the effects of certain public and private projects on the environment ("the Directive").

3

The summary of the legal framework that follows is substantially based on that given by the judge. Regulation 4(2) of the Regulations provides:

"The local planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so."

4

The question in this case is whether the application was one to which regulation 4 applied. Regulation 4(1) provides that regulation 4 applies inter alia to any "Schedule 2 application", which is defined by regulation 2(1) in these terms:

"Schedule 2 application means … an application for planning permission … for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location."

5

It is common ground that the development in this case is of a description mentioned in Schedule 2, namely "an industrial estate development project" (Schedule 2, paragraph 10(a)), and that it is not exempt development. Regulation 4 therefore applies to it if, but only if, it "would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location".

6

Regulation 2(2) provides:

"Where the Secretary of State gives a direction which includes a statement that in his opinion proposed development would be likely, or would not be likely, to have significant effects on the environment by virtue of factors such as its nature, size or location, or includes such a statement in a notification under regulation 10(1), that statement shall determine whether an application for planning permission for that development is, or is not, a Schedule 2 application by reason of the effects the development would be likely to have; and references in these Regulations to a Schedule 2 application shall be interpreted accordingly."

7

Where it is decided that an application for planning permission is a Schedule 2 application so that regulation 4 applies to it, the obligation in regulation 4(2) is, as indicated, to take the "environmental information" into consideration. "Environmental information" is defined in regulation 2(1) as "the environmental statement prepared by the applicant or appellant …, any representations made by any body required by these Regulations to be invited to make representations or to be consulted and any representations duly made by any other person about the likely environmental effects of the proposed development".

8

An "environmental statement" is defined as such a statement as is described in Schedule 3, which provides so far as material:

"1. An environmental statement comprises a document or series of documents providing, for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out, the information specified in paragraph 2 (referred to in this Schedule as "the specified information").

2. The specified information is –

(a) a description of the development proposed, comprising information about the site and the design and size or scale of the development;

(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;

(c) a description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference to its possible impact on: human beings; flora; fauna; soil; water; air; climate; the landscape; the interaction between any of the foregoing; material assets; the cultural heritage;

(d) where significant adverse affects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects;

(e) a summary in non-technical language of the information specified above."

9

Although they were not directly invoked in this case, it is relevant to note the provisions of regulation 5 concerning the giving of "screening" opinions in advance of an application for planning permission. By regulation 5(1), a person who is minded to apply for planning permission may ask the local planning authority to state in writing whether in their opinion the proposed development would be within a description mentioned in Schedule 1 or Schedule 2 and, if so, (a) within which such description and (b) if it falls within a description in Schedule 2, whether its likely effects would be such that regulation 4 would apply. By regulation 5(2), such a request must be accompanied by inter alia (a) a plan sufficient to identify the land and (b) a brief description of the nature and purpose of the proposed development and of its possible effects on the environment. By regulation 5(3) the authority shall, if they consider that they have not been provided with sufficient information to give an opinion on the questions raised, notify the person making the request of the particular points on which they require further information. Regulation 5(4) provides that the authority shall respond to a request within three weeks or such longer period as may be agreed in writing with the person making the request. Regulation 6 contains corresponding provisions as to the giving of pre-application directions by the Secretary of State.

10

So far as material, the Directive provides as follows. By its recitals:

"Whereas the 1973(4) and 1977(5) action programmes of the European Communities on the environment…..stress that the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects;

Whereas they affirm the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes; whereas to that end, they provide for the implementation of procedures to evaluate such effects;

…..

Whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent procedures governing public and private projects likely to have a major effect on the environment;

Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out…"

11

Article 2 provides:

"1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4."

12

Article 4 provides:

"2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Article 5 to 10, where Member States consider that...

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