R Lebus and Others v South Cambridgeshire District Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE SULLIVAN
Judgment Date27 Aug 2002
Neutral Citation[2002] EWHC 2009 (Admin)
Docket NumberCO/3833/2000

[2002] EWHC 2009 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(THE ADMINISTRATIVE COURT)

Before

Mr Justice Sullivan

CO/3833/2000

The Queen on the Application of Lebus and Others
and
South Cambridgeshire District Council

MR R HARWOOD (instructed by RICHARD BUXTON SOLICITORS) appeared on behalf of the Claimant.

MR J FINDLAY (instructed by SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL LEGAL DEPARTMENT) appeared on behalf of the Defendant.

MR JUSTICE SULLIVAN
1

This application for judicial review is concerned with the grant of planning permissions on 8th January and 24th January 2002 for the erection of an egg production unit and the stationing of a mobile home for an agricultural worker on land off Newton Road, Whittlesford in Cambridgeshire. It is unnecessary to consider the latter permission because it is accepted on behalf of the Council that the planning permission for the stationing of a mobile home relies upon the planning permission for the erection of the egg production unit. I should add that the recipient of the planning permissions, although notified of these proceedings, has not played any part in them. It is common ground that the egg production unit is very substantial. It is proposed to house 12,000 free range chickens in a building whose footprint is 1,180 square metres. The claimants live near to the proposed development.

2

Given the lateness of the hour, I do not propose to set out the lengthy background in anything other than the briefest outline. In 1999 the Planning Committee of the defendant Council had refused planning permission for an egg production unit and mobile home in the vicinity of the present proposal. The refusal notice stated that there would be an adverse impact on the amenity of adjoining houses, harm to an Area of Best Landscape and harm to the Green Belt.

3

The applications for planning permission, which have resulted in the planning permissions under challenge, were submitted in February 2000 and the location of the egg production unit was moved from 200 metres to 375 metres from the nearest dwelling in Newton Road. The applications for permission generated considerable local opposition, many representations were made against the scheme by local residents. They argued that there would be a number of environmental impacts and environmental consultants on their behalf contended that an environmental impact assessment ought to be carried out.

4

On 18th April 2000 the claimants' then solicitors wrote to the Council contending that an EIA was required. The letter said that an EIA was mandatory under the Town and Country Planning (Environment Impact Assessment) Regulations 1999 ("the Regulations"). The solicitors contended that any attempt by the District Council to grant planning permission without first considering a properly detailed EIA would be contrary to the 1999 Regulations and therefore unlawful. The letter went on to say:

"We suggest that, without an EIA and without a definitive, site specific noise study, the Council cannot possibly satisfy itself that this development will not give rise to unacceptable impacts on human health and amenity".

5

The response to that letter came in a letter dated 26th April written by Mr Grainger, on behalf of Mr Hussell, the planning director. The letter pointed out, correctly, that if the proposed egg production unit were to house more than 60,000 hens it would be considered under Schedule 1 of the Regulations and an EIA would be mandatory. In this case the unit would house 12,000 birds, however the building is more than 500 square metres and that exceeds the threshold set out in Schedule 2 of the Regulations.

"The Council does not consider an Environmental Assessment mandatory for Schedule 2 development but rather consideration has to be given to each proposal on whether it would have significant effects on the environment by virtue of factors such as its location, impact, nature and size. I would be pleased to learn if the Council has misdirected itself on this point. When considering the need for an Environmental Assessment the above factors as well as issues such as:

Airborne pollution;

Dirty water and litter disposal;

Ecology;

Highways and access; and

Landscape

were taken into account. The Council did not wish to be drawn into requesting an Environmental Statement purely to get information it should rightfully expect anyway. It was considered all the above points could be covered in sufficient detail without formally requesting an Environmental Statement."

6

The matter went to Committee on 5th July. The report contained a lengthy discussion of the Chief Environmental Health Officer's views, including his advice as to the need for an environmental impact analysis.

"After discussions with ADAS and Planning Officers, I would confirm that the scale of the application does not meet the guidance criteria laid down under the Town and Country (Environmental Impact Assessment England and Wales) Regulations 1999, Schedule 2. Despite various issued raised by the protesters, I do not consider it necessary to change this view. This has already been brought to the attention of some of the residents in writing by the Planning Director."

7

It seems that this was a reference to the letter of 26th April. The members were not happy and the item was deferred so that,

"…formal legal advice be sought to verify that an Environmental Impact Assessment will not be required for the egg production unit under The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999."

8

The Planning Director wrote a memorandum to the Council's principal legal officer dated 10th July 2000 which said in part:

"I attach a copy of the applications and a letter dated 26th April from Paul Grainger which explains why it is considered an Environmental Impact Assessment for the proposed egg production unit would not be mandatory."

9

Pausing there, the letter of 26th April has to be considered against the background of a conversation between the Planning Director and a local councillor, Councillor Quinlan. Mr Hussell wrote a memorandum about that meeting on 5th April to Messrs Grainger and Rush. That memorandum said, in part:

"I explained [to Councillor Quinlan] that Paul Grainger and David Rush had taken a view on these matters [that is matters of pollution and the like] and were of the opinion, and remain of the opinion, that this falls outside the scope of the regulations."

10

The first point made by Mr Harwood, on behalf of the claimants, is that on its face the letter dated 26th April advances an inadmissible reason for not requiring an environmental impact assessment. On its face, the letter does not say that the proposed development would not have significant affects on the environment, rather it says that the Council does not want to be drawn into that matter because it is going to receive the information in sufficient detail without formally requesting an environmental statement. He submits that this is an inadmissible approach in the light of the decision of the House of Lords in the case of Berkeley.

11

Mr Findlay submits that that is not the correct interpretation of the letter. The claimants' then solicitors, writing on 18th April, understood that a decision had been made that an EIA was not going to be required, and were asking for the matter to be reconsidered. Against that background the letter was explaining why this was unnecessary: that it would not be right to ask for an environmental statement purely to get information that the Council could rightfully expect in any event. It is said that the solicitors were writing with this knowledge because the Planning Director had explained to Councillor Quinlan, who was in touch with the local objectors, that a view had been taken by Messrs Grainger and Rush.

12

I am unable to accept Mr Findlay's submissions. It seems to me that taking the letter at face value, it states perfectly correctly that environmental assessment is not mandatory for Schedule 2 development. Each proposal has to be individually considered so as to decide whether or not it would have significant effects on the environment; so far so good. The letter is also perfectly correct in identifying certain factors that should be considered, including such matters as airborne pollution, ecology, highways and access and so forth.

13

However, what the letter significantly, in my judgment, does not say is that a view has been taken that the proposed development will not have significant effects on the environment. In essence, the Council is saying in this letter of 26th April: 'It is not necessary for us to require a formal environmental statement. We are going to be able to get the information in sufficient detail in any event without requiring such a formal document'.

14

That was the position, therefore, as at the stage of the memorandum to the Council's principal legal officer. The Council's principal legal officer gave advice in terms of what the Regulations required which is not, and indeed could not be, criticised. There was also correspondence from the claimants' new solicitor, Richard Buxton, which made the point in terms that it was not enough for the Council to say that it would be able to obtain all the information by other means; that did not justify not requiring a formal environmental statement.

15

At some stage at or round the receipt of advice from the Council's legal officer a summary screening table was produced which set out the various impacts that could be expected to result from the development, giving their...

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