R (Malster) v Ipswich Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE ROBERT WALKER,MR. JUSTICE LADDIE |
| Judgment Date | 31 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1715 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C/01/1943 |
| Date | 31 October 2001 |
[2001] EWCA Civ 1715
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Sullivan)
Royal Courts of JusticeStrandLondon WC2
Lord Justice Pill
Lord Justice Robert Walker
Mr. Justice Laddie
C/01/1943
MISS E. SHARPSTON Q.C. and MR. M. EDWARDS (instructed by Richard Buxton, Cambridge) appeared on behalf of the Applicant.
MR. J. LITTON (instructed by Ipswich Borough Council) appeared on behalf of the Respondent.
MR. D. ELVIN Q.C. and MR. J. MAURICI (instructed by Messrs Ashurst Morris Crisp, London, EC2) appeared on behalf of the Interested Party.
This is an application for permission to appeal against a judgment of Sullivan J given on 17th August 2001. He refused an application made by Mrs Rose Malster to quash a grant of planning permission made on 14th May 2001 by the Ipswich Borough Council to the Ipswich Town Football Club for the redevelopment of the north stand at the club's Portman Road stadium. The judge refused permission to appeal against his order.
The judgment is a detailed and comprehensive one and it is not necessary, for the purpose of determining the applications before the court, to set out the facts in detail. I adopt the statement of the factual background which is included in the judgment of Sullivan J.
What is sought is permission to appeal and also the question of a reference to the European Court of Justice under Article 234 of the Treaty is raised. This court is a court of last resort if permission to appeal is refused. It is submitted that the court should not refuse permission without a reference to the European Court of Justice.
The two points taken by the applicant.
The first, and that on which a reference is sought, is that the planning permission is fatally flawed, in that it should not have been granted without there first being an environmental impact assessment as provided by Directive 85/337/EEC as amended by Directive 97/11. The second point raised is that the Council in granting permission have failed to have regard to and comply with Article 8 of the European Convention on Human Rights, now incorporated into English law.
Article 2 of the Directive provides at paragraph 1 that:
"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. These projects are defined in Article 4."
Article 4 divides projects into two categories which are listed in Annex 1 and Annex II. With respect to those in Annex II, Member States shall determine, through a case by case examination or thresholds or criteria set by the Member States, whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Article 4.3 provides that 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 into account. By virtue of Annex III, the selection criteria referred to in Article 4.3 are (i) the characteristics of projects, one of those being the size of the project; (ii) the location of the projects, which includes a reference to densely populated areas, and (iii) the characteristics of the potential impact. That provides, insofar as material, that:
"The potential significant effects of projects must be considered in relation to criteria set out under 1 and 2 above, and having regard in particular to:
the extent of the impact, (geographical area and size of the affected population)"
and, also as criteria, the probability of the impact, the magnitude and complexity of the impact, the duration, frequency and reversibility of the impact.
Put as a brief summary, the effect of the proposed stand is to cast a shadow upon a residential area near it. It is in that residential area, put by counsel on the applicant's behalf as a narrowly circumscribed residential area, where the applicant lives. The judge has set out at paragraphs 71 to 73 of his judgment the area which he had in mind and the effect which the project would have on particular residences. It appears that the judge took into account not only the applicant's residence but others in the immediate area, though it is right to say that in the case of some of them arrangements have been made which are satisfactory to the residents. In relation to a hostel on the Sir Alf Ramsey Way, the Council were not prepared to grant permission unless certain remedial steps were taken. They have now been taken to the satisfaction of the planning authority.
Miss Sharpston QC for the applicant has referred the court to diagrams showing the shadowing effect of the proposed stand at the equinox. I need not set out in detail the technical evidence as to that. There is no dispute about it. I briefly refer to paragraph 71 to give an indication of the issue:
"The council's normal planning standards would not be met at the hostel and at number 43. Although there would be increased shadow in the garden of number 42, the planning standards would still be met. On 21st December (winter solstice) the two-tier stand would obviously cast a much longer shadow. But the houses at the southern end of the terrace, including number 42, would be in shadow in any event from the existing buildings, including the recently demolished northern stand."
The main issue before the judge, as agreed at that stage and also before this court, is the shadowing effect, though Miss Sharpston does seek to draw attention to the other effects which the presence of this large structure has upon local amenity. The case before the judge was debated very largely upon the question of shadow. Miss Sharpston submits that an environmental impact assessment should plainly have been ordered. In support of that submission she relies upon passages in the documents, including a passage in the report of the planning officer which led to the relevant decision. She refers to the fact that, in a letter sent to the planning committee shortly before the decision was taken, a representative of the local residents set out carefully and in detail the effect of the proposed stand upon the light at the premises and the effect which the loss of light allegedly would have. Having set out the factors involved, the planning officer stated (page 273 of the bundle):
"On balance, given the substantial improvements to the locality which would occur as a result of this proposal and the wider benefits of the new stand to the town and its sporting context, the proposals are considered to be acceptable in planning terms, provided an agreement can be reached over the hostel. There is no escaping that this is a large building that will be a significant feature in the area, but it is not considered that any adverse effects on nearby residents are so significant as to warrant refusal of permission."
Miss Sharpston relies upon the planning officer's use of the word "significant" as indicating that he must have been of the opinion that the project would have a significant effect on the environment. I am unable to accept that submission. It does not follow from the fact that the structure would be a significant feature in the area that it does have a significant effect on the environment within the meaning of Article 2 of the Directive.
It is further submitted that the judge at paragraph 55 of his judgment implicitly accepted that there was a significant effect on the environment. Paragraph 55 reads, so far as is material:
"Pausing there, it is relevant to note that this is not a case where it is suggested on behalf of the claimant that there is likely to be any significant effect on the environment apart from...
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