R Matthew Champion (Claimant/ Respondent) v North Norfolk District Council (Defendant/First Appellant) Crisp Malting Group Ltd (Interested Party/Second Appellant) Natural England (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Lewison,Mr Justice Coleridge |
| Judgment Date | 18 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1657 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C1/2013/1418 & C1/2013/1410 |
| Date | 18 December 2013 |
[2013] EWCA Civ 1657
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
James Dingemans QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Lewison
and
Mr Justice Coleridge
Case Nos: C1/2013/1418 & C1/2013/1410
and
and
Christopher Lockhart-Mummery QC (instructed by Howes Percival) for the Appellants
Richard Harwood QC (instructed by Richard Buxton Environmental & Public Law) for the Respondent
This is an appeal against an order made by Mr James Dingemans QC (as he then was), sitting as a deputy High Court Judge, by which he allowed a claim for judicial review and quashed a planning permission granted by North Norfolk District Council to Crisp Malting Group Limited ("CMGL") for a proposed development at their Great Ryburgh plant in Norfolk. In fact, separate appeals were lodged by the Council and CMGL, but the appellants made common cause and were jointly represented before us by Mr Christopher Lockhart-Mummery QC. The claim for judicial review was brought by Mr Matthew Champion, a member of the Ryburgh Village Action Group. He is the respondent to the appeal and was represented before us by Mr Richard Harwood QC. There was a linked claim against Natural England which the judge dismissed; and although Natural England was also an interested party in the claim which is the subject of the present appeal, it has played no part in the appeal.
The proposed development consisted of the erection of two silos and the construction of a lorry park with wash bay and ancillary facilities, associated surface water balancing pond, access and landscaping, on a site close to the River Wensum, which is a Site of Special Scientific Interest ("SSSI") and a Special Area of Conservation ("SAC"). The issues of concern relate to the risk of pollutants from the site entering the river and damaging the SSSI and the SAC.
The Council's Development Control Committee decided that the development was not such as to require either an Environmental Impact Assessment ("EIA") under the regulations implementing Council Directive 85/337/EEC ("the EIA Directive") or an Appropriate Assessment under the regulations implementing Council Directive 92/43/EEC ("the Habitats Directive"). It also decided that the grant of planning permission should be subject to conditions relating to the monitoring and, if necessary, restoration of water quality in the drainage network between the development site and the River Wensum, so as to avoid harm to the SSSI and the SAC. The judge held, in short, that the Committee could not rationally adopt both positions at once: the first decision suggested that the Committee thought that there was no relevant risk of pollutants entering the river, whereas the second decision suggested that it considered that there was such a risk. For that reason he exercised his discretion to quash the planning permission.
The appellants take issue with the judge's reasoning and conclusion. The respondent seeks to uphold the judge's reasoning but also, by way of a respondent's notice, puts forward additional reasons in support of his conclusion.
The legal framework
The EIA Directive
The EIA Directive requires Member States to make certain projects subject to an EIA. The implementing regulations in force at the relevant time were the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the EIA Regulations"). They have since been replaced by regulations made in 2011 which are in materially similar terms, but the references I shall give are to the 1999 version.
The EIA Regulations provide that planning permission must not be granted for "EIA development" unless environmental information including an environmental statement (or EIA) has been taken into account: regulation 3(2). "EIA development" includes "Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location": regulation 2(1). It is common ground in this case that the proposed development is Schedule 2 development. In deciding whether Schedule 2 development is EIA development, account has to be taken of such of the selection criteria in Schedule 3 as are relevant to the development: regulation 4(5).
The guidance in Circular 02/99, Environmental Impact Assessment, says this about the decision-making process:
"33. As a starting point, authorities should study Schedule 3 to the Regulations … which sets out the 'selection criteria' which must be taken into account in determining whether a development is likely to have significant effects on the environment. Not all of the criteria will be relevant in every case. It identifies three broad criteria which should be considered: the characteristics of the development (e.g. its size, use of natural resources, quantities of pollution and waste generated); the environmental sensitivity of the location; and the characteristics of the potential impact (e.g. its magnitude and duration). In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case: … (b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations …."
Later, in paragraph 37, the guidance states that in practice the likely environmental effects of Schedule 2 development "will often be such as to require EIA if it is to be located in or close to" an SSSI or SAC. It advises that in a case of uncertainty, Natural England should be consulted.
In R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157, at para 17, Moore-Bick LJ expressed the view that "any serious possibility" would suffice to satisfy the test of "likely" significant effects in the context of the EIA Directive.
In determining the likelihood of significant effects, it is open to the decision-maker to have regard to proposed remedial measures. In Gillespie v First Secretary of State [2003] EWCA Civ 400, [2003] Env LR 30, Pill LJ put the matter in this way:
"37. The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously but the Secretary of State is not as a matter of law required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects ….
41. … There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached …."
In similar vein, Laws LJ said this:
"46. … Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and plainly uncontroversial, then as it seems to me the case calls for an EIA …."
This was picked up in R (Jones) v Mansfield District Council [2003] EWCA Civ 1408, [2004] Env LR 21, at para 38, where Dyson LJ stated:
"… It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie) ….."
The only other point I should mention in relation to the EIA Regulations is that they make provision for a local planning authority to adopt an early "screening opinion" as to whether a proposed development requires an EIA. A defective screening opinion does not, however, invalidate the entire decision-making process. The ultimate question is whether planning permission has been granted without an EIA in circumstances where an EIA was required: see R (Berky) v Newport City Council [2012] EWCA Civ 378, [2012] Env LR 35, per Carnwath LJ at para 22.
The Habitats Directive
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