R Michael Evans (Applicant) Secretary of State for Communities and Local Government (Respondent) Babergh District Council (First Interested Party) Persimmon Homes Ltd (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Sir Stanley Burnton,Lord Justice Patten |
| Judgment Date | 22 February 2013 |
| Neutral Citation | [2013] EWCA Civ 114 |
| Date | 22 February 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/1387 |
[2013] EWCA Civ 114
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
HHJ Mackie QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Beatson
and
Sir Stanley Burnton
Case No: C1/2012/1387
David Wolfe QC (instructed by Richard Buxton Environmental and Public Law) and Paul Stookes (of Richard Buxton Environmental and Public Law) for the Applicant
David Forsdick (instructed by the Treasury Solicitor) for the Respondent
The First Interested Party did not appear and was not represented
Meyric Lewis (instructed by Ashton Kcj Solicitors) for the Second Interested Party
Hearing date: 13 February 2013
This is an application by Mr Michael Evans for permission to appeal the order of HHJ Mackie QC dated 31 May 2012 refusing him permission to apply for judicial review of the screening direction of the Secretary of State dated 21 October 2011 pursuant to Regulation 6 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 SI 1999 No. 293 ("the 1999 EIA Regulations"). By an order dated 23 October 2012, Mummery LJ adjourned the application to a full court on a "rolled-up" basis, i.e. with the appeal to be heard immediately after the application if permission is granted. Since then Sullivan LJ has made a protective costs order in favour of the applicant.
In his screening direction, the Secretary of State decided that a proposed development by Persimmon Homes (Anglia) Ltd, the interested party, for which planning permission had been sought, was not likely to have significant effects on the environment. It followed that it is not an "EIA development" and is not subject to the additional procedural requirements of such a development.
The 1999 EIA Regulations transpose into domestic law the requirements of Council Directive 85/337/EEC ("the EIA Directive") as amended inter alia by Council Directive 2003/35/EC ("the Public Participation Directive"). The EIA Directive was consolidated by 97/11/EC. A development is an EIA development if it either falls within Schedule 1 of the 1999 EIA Regulations or it is a development within Schedule 2 which is "likely to have significant effects on the environment by reason of factors such as its nature, size or location". These proceedings are only concerned with Schedule 2. Where a development is an EIA development, the developer must furnish an environmental statement to ensure that the potential environmental impacts of major development projects are identified at an early stage of the process. Planning permission cannot be granted for EIA development unless the relevant planning authority or the Secretary of State has taken into account the specified environmental information.
The applicant submitted that the Secretary of State's approach in making this screening direction erred in not being "precautionary and purposive" and that the deputy judge erred in scrutinising the Secretary of State's decision by applying the Wednesbury test and not some other test. These questions, in particular the second one, have been the subject of a number of decisions of this court, most recently that in R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 849 in which the judgment of this court was handed down on 29 June 2012.
Mr Wolfe QC, on behalf of the applicant, submitted that in Loader's case this court did not, in his words, "grapple" or have to "grapple" with the point, because Mr Pereira, counsel for the claimant, had conceded it, and that the decision is in any event distinguishable because the court was not dealing with whether the Wednesbury test applied to a screening decision. As to the case that is most directly against him, R (Jones) v Mansfield DC [2003] EWCA Civ 1408, Mr Wolfe maintained that the point "only arose in argument" and, more importantly, that decision and others relied on by the Secretary of State pre-dated the enactment of the Public Participation Directive and Article 10A of the EIA Directive giving legal effect to provisions of the Aarhus Convention requiring effective public participation in decision-making in relation to certain environmental matters and developments in the jurisprudence of the CJEU. The effect of these is inter alia to require a person who objects to the Secretary of State's decision to have access to an independent court to challenge its substantive and procedural legality. Mr Wolfe submitted that the Wednesbury test was inadequate for that purpose. He also submitted that if this court refuses permission, as there is no further appeal, it should refer the questions to the CJEU.
The proposed development is of 170 dwellings and associated roads and infrastructure over 4.75 hectares of a 12.7 hectare site at Carson's Drive, Great Cornard, Sudbury, Suffolk, adjacent to existing housing. The site was originally within a locally designated Special Landscape Area ("SLA"), but was allocated for residential development following a local plan inquiry. It is common ground that the site falls within paragraph 10(b) of the first column of Schedule 2 to the 1999 EIA Regulations. The general heading is "infrastructure projects", and paragraph (b) covers "urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas". The threshold specified in column 2 is that the area of the development exceeds 0.5 hectares. The indicative size thresholds for the EIA process in the department guidance (Circular 2/99) is a site area of more than 5 hectares and a development which would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings).
The applicant lives near the site and is Chairman of the Cornard Tye Residents' Association. Persimmon applied for planning permission in January 2010. A number of the proposed dwellings would be visible from the grounds of Abbas Hall, a Grade 1 listed building. In April 2010 English Heritage wrote to the local planning authority, Babergh District Council ("the Council") recommending further analysis (including the use of photomontage) on the historic landscape because of the views down and across the valley, and its significance because of its association with the artist Thomas Gainsborough. English Heritage did not state that it considered the development is an EIA development.
In September 2010, the new owner of Abbas Hall wrote to the Council asking whether the Council had considered the need for an Environmental Statement by means of a screening opinion in accordance with the 1999 EIA Regulations. The Council accepted that it ought to have, but had not, screened Persimmon's application within three weeks of its receipt. In a document dated 17 November 2010 the Council gave an initial "screening opinion" for EIA purposes. That concluded the proposed development would not have a significant impact on the environment and that an environmental impact assessment was therefore not required.
Following a challenge to that screening opinion in a pre-action protocol letter by the applicant's solicitors, on 15 February 2011 the Council reconsidered the matter. In a second screening opinion it decided that an EIA was necessary. It did so because it concluded that the development proposals were likely to have an impact on the setting of Abbas Hall and on the locally designated Special Landscape Area ("SLA"). Its reasons for this conclusion were that, in the short term, a number of the 170 dwellings would be exposed to views from the grounds of Abbas Hall and from within the Special Landscape Area until proposed new woodland planting had sufficient time to mature. It, however, also stated that when the proposed woodland landscaping reached maturity, that planting would have its own effects on the setting of Abbas Hall and the SLA. While the "visual urbanising effects" of the 170 dwellings would reduce in time, the woodland belt would, in itself, have the effect of changing the landscape and its own impacts upon the setting of Abbas Hall, the effects increasing in time as the planting matured. The Council stated that the visual impacts are "not capable of being reversed without significant investment and social upheaval (removal of the woodland belt and removal of the dwellings and associated infrastructure)".
In a letter dated 15 April 2011, Persimmon requested the Secretary of State to make a screening direction under Regulation 6 of the 1999 EIA Regulations. A Senior Planning Manager in the Department for Communities and Local Government sought the advice of inter alia English Heritage. In emails in August 2011 English Heritage stated that there would be harm to the historic environment, but less than substantial harm. This did not in itself justify the development being an EIA development, but might do so if taken together with other impacts and effects on environmental issues.
The Secretary of State's direction, dated 21 October 2011, concluded that an EIA was not required. The Secretary of State concluded that:-
"Whilst recognising the historic and cultural importance of the landscape both in terms of the Grade 1 Listed Building of Abbas Hall, its status as part of a Special Landscape Area and its cultural associations with the...
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