R Loader v Secretary of State for Communities and Local Goverment and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lord Justice Toulson,Lord Justice Sullivan,or
Judgment Date29 June 2012
Neutral Citation[2012] EWCA Civ 869
Date29 June 2012
Docket NumberCase No: C1/2011/2222

[2012] EWCA Civ 869

[2011] EWHC 2010 (Admin)

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

THE HON. MR. JUSTICE LLOYD JONES

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Pill

Lord Justice Toulson

and

Lord Justice Sullivan

Case No: C1/2011/2222

Between:
The Queen on the Application of Loader
Appellant
and
Secretary of State for Communities and Local Goverment & Ors
Respondent

Mr James Pereira (instructed by Richard Buxton Environmental & Public Law solicitors) for the Appellant

Mr James Maurici (instructed by Treasury Solicitor) for the Respondent

Hearing date : 23 May 2012

Lord Justice Pill
1

This is an appeal against a judgment of Lloyd Jones J dated 28 July 2011 whereby he refused an application by Ms Anne-Marie Loader ("the appellant") to quash a decision of the Secretary of State for Communities and Local Government ("the Secretary of State"). On 7 July 2009, the Secretary of State gave a screening direction by which he stated that a development proposed by Churchill Retirement Living Ltd (the Second Interested Party) was not likely to have "significant effects on the environment" for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations"). It followed that the proposed development was not an Environmental Impact Assessment ("EIA") development and did not require the procedure under the 1999 Regulations to be followed before a planning permission could be granted.

2

Permission to appeal was granted, on a renewed oral application, by Richards LJ who stated that "there is a compelling reason for an appeal to be heard in relation to it." "The issue is one of sufficient importance to merit an authoritative and fully reasoned ruling by this court".

The facts

3

The screening direction related to the proposed redevelopment 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 appellant's standing to make the application for judicial review has not been challenged.

4

Planning permission was first sought in August 2006 and was refused by Rother District Council ("the Council") on 12 October 2006. An appeal to the Secretary of State was allowed but the grant of permission was quashed by consent on 10 June 2008 for agreed failure to follow the procedure under the 1999 Regulations. On remittal to the Secretary of State, the screening direction now challenged was made. It determined that:

"The development proposed, namely re-development of the site to form 41 sheltered apartments for the elderly, car parking, landscape and access and new outdoor bowls green, indoor rink, club facilities and car parking, falls within the description at paragraph 10(b) of Schedule 2 to the 1999 Regulations, and exceeds the threshold in column 2 of the table in that Schedule, but in the opinion of the Secretary of State, having taken into account the criteria in Schedule 3 to the 1999 Regulations, would not be likely to have significant effect on the environment by virtue of facts such as its nature, size or location. Accordingly, in exercise of the powers conferred on her by reg.s 9(1) and 6(4) of the 1999 Regulations, the Secretary of State hereby directs that the development for which planning permission is sought by application reference number RR/2006/2226/P is not EIA development."

5

Reasons for the decision, which was made by the Planning Inspectorate ("the Inspectorate") on behalf of the Secretary of State, were provided on 4 August 2009. (No attempt has been made to distinguish the role of the Inspectorate from that of the Secretary of State.) The reasons were:

"The appeal is for a re-development to form 41 sheltered apartments for the elderly, car parking, landscape and access and new outdoor bowls green, indoor rink, club facilities and car parking. The development falls under the description at paragraph 10(b) of schedule 2 to the 1999 Regulations – Urban development projects. This includes the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas.

The site is not within an approved Green Belt or AONB, nor is it in or adjacent to or likely to affect an SSSI, and no protected species are affected, however as the site area is 0.7 hectares the development exceeds the applicable thresholds and criteria guidance given in column 2 of the table in that schedule of being over 0.5ha, and so requires EIA screening.

The guidance given in the indicative criteria/thresholds in schedule 3 to the 1999 Regulations, is that in addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions, and noise. EIA is unlikely to be required for the development of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination.

Developments proposed for sites which have not previously been intensively developed are more likely to require EIA if;

The site of the scheme is more than 5 hectares; or

They would provide a total of more than 10,000m2 of new commercial floor space; or

The development would have significant urbanising effects in a previously non-urbanised area. (e.g. a new development of more than 1,000 dwellings).

The current use of the site is as a bowls club and so the land has already been developed, and use as a bowling club already established.

The site is 0.7 hectares and well under the guidance given of EIA being required for land which has not previously been intensively developed (over 5ha). The residential part of the development is for 41 apartments. This again is below the guidelines given (a new development of more than 1,000 dwellings). The land is not in a sensitive area, nor does it affect a European site as given within the meaning of reg. 10 of the Conservation (Natural Habitats etc.) Regulations. So any impacts would be of a local nature only.

In conclusion this re-development would not have significant effects on the environment considering the size, nature and location of the development."

6

Following further representations both by the appellant and by the second interested party, the Secretary of State, by letter of 24 September 2009, confirmed the decision. On receipt of a pre-action protocol letter from the appellant's solicitors, the Secretary of State provided a copy of a screening checklist dated 12 September 2009 completed on behalf of the Secretary of State. It was said that the check list was in the format approved by the EU Commission.

The Environmental Impact Assessment framework

7

For the appellant, Mr Pereira referred to the EU Environmental Impact Assessment Directive (85/337/EEC) as amended ("the Directive"), transposed into domestic law by the 1999 Regulations. Both the Directive and the 1999 Regulations have now been replaced but the changes are not said by either party to be material for present purposes. It was submitted that the Secretary of State had misdirected himself in law as to the meaning of "significant effects on the environment" in article 2(1) of the Directive and in regulation 2.

8

The purpose of the procedure is described in one of the recitals to the Directive:

"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 this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question."

9

A screening direction is defined in Regulation 2(1) of the 1999 Regulations as "a direction made by the Secretary of State as to whether development is EIA development". (Regulation 2 provides that the decision of the Secretary of State as to whether development is EIA development is a "Screening Direction"; the written statement of the opinion of the relevant planning authority, normally the local planning authority, is known as a "Screening Opinion").

10

Under the heading "Environment", article 191(2) of the Treaty on the Functioning of the European Union provides:

"Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay."

11

Article 2.1 of the Directive 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 a requirement for development consent and an assessment with regard to their effects. Those projects are defined in Article 4."

12

Article 4 provides:

"1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:

(a) a case-by-case examination;

or

(b) thresholds or criteria set by...

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