R Loader v Secretary of State for Communities and Local Goverment and Others
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Lloyd Jones |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] EWHC 2010 (Admin) |
| Docket Number | Case No: CO/11064/2009 |
| Date | 28 July 2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2011] EWHC 2010 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr. Justice Lloyd Jones
Case No: CO/11064/2009
James Pereira (instructed by Richard Buxton Solicitors) for the Claimant
James Maurici (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 27 th May 2011
The Claimant, who lives and works in Bexhill on Sea, seeks judicial review of a screening direction by the Secretary of State for Communities and Local Government ("the Secretary of State") made under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 ("the EIA Regulations"). The screening direction related to the proposed re-development of a site at Gulliver's Bowls Club, Knole Road, Bexhill on Sea to form 41 sheltered apartments for the elderly, car parking, landscape and access and a new outdoor bowls green, indoor rink, club facilities and car parking. The Secretary of State's delegate, the Planning Inspectorate ("PINS"), determined that the proposed development, which was the subject of an appeal against the refusal of planning permission by the First Interested Party, Rother District Council ("the Council"), was not likely to have significant effects on the environment and thus did not need to be accompanied by an Environmental Impact Assessment ("EIA").
The screening direction was contained in a letter dated 7 th July 2009 which was subsequently affirmed in a further letter of 24 th September 2009. It is common ground between the parties that a number of other documents evidence the reasoning for that direction, including a check list annexed to a letter from PINS dated 7 th October 2009.
The history of the matter can be summarized as follows. By an application dated 2 nd August 2006 and received on 23 rd August 2006 the Second Interested Party, Churchill Retirement Living Limited, ("the Developer") made an application to the Council for the re-development of the former bowls club at Knole Road. By decision notice dated 12 th October 2006 the Council refused the application. An appeal was lodged and subsequently allowed. However the inspector's decision letter was quashed by consent of the parties on 10 th June 2008 because the Defendant had failed to consider whether the proposal was a Schedule 2 application within the 1999 Regulations before granting planning permission.
On 7 th July 2009 the Defendant made a negative screening direction i.e. the Defendant determined that the development did not require an Environmental Impact Assessment. On 28 th July 2009 the Claimant's solicitor wrote to the Defendant asking for detailed reasons for the screening decision. By letter dated 4 th August 2009 the Defendant provided reasons for his decision. These reasons were challenged by the Claimant's solicitors by letter dated 13 th August 2009. By letter dated 26 th August 2009 the Defendant reaffirmed its earlier decision. In a response dated 3 rd September 2009 the Claimant's solicitors made further representations in support of the view that an EIA was required. On 9 th September 2009 the Developer's representatives ("Planning Issues") made lengthy representations on why an EIA was not required and expressly requested that the Defendant reconsider his screening decision taking into account these further representations. By letter dated 11 th September 2009 the Claimant's solicitors responded to the Defendant making further representations.
By letter dated 24 th September 2009 the Defendant wrote to the Claimant's solicitors confirming that he had reviewed his decision but remained of the view that an EIA was not required for the reasons previously given. By letter dated 28 th September 2009 the Developer wrote to the Defendant raising its concern that a challenge was possible unless the Defendant clearly demonstrated how his decision had been reached. A pre-action protocol letter was sent by the Claimant's solicitors on 30 th September 2009. By letter dated 5 th October 2009 Planning Issues formally requested that the Defendant issue his reasoning on how he exercised his judgement when issuing the EIA Screening Decision issued on 7 th July. By letter dated 7 th October 2009 the Defendant responded to the pre-action protocol letter and enclosed a copy of a screening checklist completed on behalf of the Secretary of State and dated 12 th September 2009. The letter explained that the checklist, which was in the format approved by the EU Commission, had been completed by an officer acting on behalf of the Secretary of State in reaching the conclusion published in the Defendant's letter of 24 th September 2009.
The application for permission to apply for judicial review was issued on 7 th October 2009. In the course of a convoluted procedural history the Claimant obtained permission to apply for judicial review on the following grounds:
(1) The Secretary of State in making the screening direction misdirected himself as to the meaning of "significant effects on the environment" in Article 2(1), Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC).
(2) The Secretary of State's reasons for the screening direction were defective in relation to the possible impact of removal of asbestos and mitigation measures.
Legislative context
Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment states in the preamble that the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects. Accordingly it affirms the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision making processes. Its purpose is to provide for the implementation of procedures to evaluate such effects. The preamble further states:
"Whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent to 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;…
…
Whereas projects belonging to certain types have significant effects on the environment these projects must as a rule be subject to systematic assessment;
Whereas projects of other types may not have significant effects on the environment in every case and whereas these projects should be assessed where the Member States consider that their characteristics so require…"
The distinction between these two categories of projects is reflected in the body of the Directive ("the EIA Directive").
Article 2(1) provides:
"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 the requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4."
Article 4 provides in relevant part:
"1. Subject to Article 2(3), projects listed in Annex 1 shall be made subject to an assessment in accordance with article 5 to 10.
2. Subject to Article 2(3), for projects listed in Annex II, the Member State shall determine through:
(a) A case-by-case examination, or
(b) Thresholds or criteria set by the Member State,
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures to in (a) and (b).
3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken in to account.
…"
Accordingly projects listed in Annex I always require an assessment ("EIA"), Member States have under Article 4 a measure of discretion to decide which projects listed in Annex II require an EIA.
Projects set in Annex II include under heading 10 "Infrastructure projects". Category 10(b) is defined as follows:
"Urban development projects, including the construction of shopping centres and car parks."
The EIA Directive is implemented by the EIA Regulations. The scheme of the EIA Regulations is very similar to that of the EIA Directive. It distinguishes between different categories of development. Regulation 2 provides:
""EIA Development" means development which is either—
(a) Schedule 1: or
(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location…"
Schedule 1 is in identical terms to Annex I of the EIA Directive. Planning applications for projects falling within the description in Schedule 1 of the EIA Regulations may not be approved unless they have been subject to EIA.
Schedule 2 development is defined by Regulation 2(1) as follows:
""Schedule 2 development" means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where—
(a) any part of that development is to be carried out in a sensitive area; or
(b) any...
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