R (Jones) v Mansfield District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards |
| Judgment Date | 20 January 2003 |
| Neutral Citation | [2003] EWHC 7 (Admin) |
| Docket Number | Case No: CO/1676/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 January 2003 |
[2003] EWHC 7 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/1676/2002
Mr David Wolfe (instructed by Public Interest Lawyers) for the Claimant
Mr John Steel QC and Miss Sarah-Jane Davies (instructed by Browne Jacobson)
for the Defendant
By these proceedings the claimant challenges the grant of outline planning permission for the development of an industrial estate on a 28.4 hectare site off Abbot Road, Mansfield. The claimant lives opposite the site and at present has uninterrupted views of open countryside and uses the site for walks and other recreational purposes. Understandably she objects to the development. The legal issue, however, is whether it was reasonable for the defendant council to decide that an environmental impact assessment ("EIA") was not required before planning permission could be granted; in particular, whether the council could reasonably conclude in the circumstances that the development was not likely to have significant effects on the environment.
The council originally determined to grant outline planning permission in November 2001, but the claimant challenged the validity of that decision on the ground that it had been reached without proper consideration of whether an EIA was required. The council agreed to reconsider the question of an EIA and the challenge was withdrawn. On 25 February 2002 the council's Planning Committee reached two decisions: first, that an EIA was not required, and secondly that planning permission should be granted. The claimant challenges the first decision on the ground that it was unreasonable and unlawful, and the second decision on the ground that the grant of planning permission was flawed by the unlawful decision not to require an EIA.
Legal framework
The relevant regulations are the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Those regulations have been replaced by 1999 regulations in respect of applications made after 15 March 1999. The 1999 regulations are materially the same. Both sets of regulations implement Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment.
Regulation 4(2) of the 1988 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."
The question in this case is whether the application was one to which the regulation applied. By regulation 4(1), the regulation 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."
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".
Whether it would be likely to have such effects is a matter for decision by the local planning authority, subject to review on Wednesbury grounds: Berkeley v. Secretary of State for the Environment [2001] 2 AC 603, 610 G-H and 614G-615A, R v. Rochdale Metropolitan Borough Council, ex parte Milne [2001] Env LR 406 at 433 para 106, R (Malster) v. Ipswich Borough Council [2001] EWHC Admin 711 at paras 57–70.
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.
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".
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 effects 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."
In R v. Rochdale MBC, ex parte Tew [2000] Env LR 1 at 20, Sullivan J referred to the recitals of an amending directive, 97/11, as containing a convenient summary of the aims and importance of the original Directive: in particular, that it "aims at providing the competent authorities with relevant information to enable them to take a decision on a specific project in full knowledge of the project's likely significant impact on the environment".
In Berkeley Lord Hoffmann, referring to the purposes of the Directive, emphasised the importance of an environmental statement as a means of informing members of the public and enabling them to form their own judgments on, and to express an opinion on, the significance of the environmental issues raised by a proposed development. The context was a failure by the Secretary of State, as decision-maker, to comply with the basic obligation to consider whether an EIA was needed. That was held to be a fatal flaw, irrespective of whether the outcome would have been the same if an EIA had been required or whether the decision-maker had all the information necessary for the purposes of reaching a proper decision on the environmental issues. Although focusing on a different point from that raised in the present case, Berkeley underlines the importance of an EIA and, therefore, the importance of reaching a proper decision as to whether an EIA is required.
Department of the Environment Circular No.15/88 on Environmental Assessment summarises the background to the 1988 Regulations and gives guidance on their application. In a section on the identification of relevant Schedule 2 projects, the circular points out in paragraph 18 that the basic question to be asked is whether a project is likely to give rise to significant environmental effects. Paragraph 19 states that as a starting point authorities will find it helpful to study the terms of Schedule 3, which sets out the scope of the information which may be called for where an environmental statement is to be provided and thus indicates the sort of factors which are relevant in considering whether environmental assessment is necessary in Schedule 2 cases. The circular goes on to...
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