R Oldfield v Secretary of State for the Communities and Local Government and Others (1st Respondent) Thanet District Council and Another ([Interested Party 3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Maurice Kay,Lady Justice Macur DBE |
| Judgment Date | 07 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1446,[2014] EWCA Civ 1199 |
| Date | 07 November 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2013/3776,Case No: C1/2013/3776 & C1/2014/0185 |
[2014] EWCA Civ 1199
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(LORD JUSTICE MOSES)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Jackson
C1/2013/3776
Mr I Dove, QC (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Appellant
Mr R Moules (instructed by Osborne Clarke) appeared on behalf of the Respondent
(As approved)
This is an application for permission to appeal. The facts giving rise to this application are as follows. There are two adjacent sites at Margate in Kent where developments might be carried out. One is the Dreamland site and the other immediately next to it is Arlington Square and a tower which stands on Arlington Square called Arlington House.
Thanet District Council acquired Dreamland through compulsory purchase in 2012. A development company called Metropolitan Property Realisation Limited ("MPR") proposes to carry out the development of Arlington Square and Arlington House. The full history is set out in the judgment of Moses LJ sitting in the administrative court and in the Inspector's report on the planning application for Arlington House and Arlington Square. I can, therefore, take matters very briefly.
There was a screening decision by the Secretary of State on 18 July 2012 which came to the conclusion that an Environmental Impact Assessment was not necessary because the proposed development at Arlington Square and Arlington House would not have significant effect on the environment by reason of factors such as its nature, size or location. This was followed by the Inspector's report on an appeal by MPR concerning its application for planning permission to develop Arlington House and Arlington Square. The report recommended that planning permission be granted on a number of conditions and it accepted the correctness of the screening opinion concerning the need for an Environmental Impact Assessment. The Secretary of State granted planning permission to MPR for the development of Arlington Square and Arlington House by a decision letter dated 13 June 2013, annexed to which were a large number of conditions set out in Annex A.
A number of local residents concerned with the conservation of Margate are opposed to the Arlington development. The leader of the local opposition is a lady called Louise Oldfield who is the Chair of the Margate Conservation Area Advisory Group. She has commenced two sets of proceedings. The first is a judicial review to challenge the screening decision. The second is an appeal pursuant to section 288 of the Town and Country Planning Act 1990 against the grant of planning permission by the Secretary of State on 13 June 2013.
The two sets of proceedings have been proceeding together following an order for trial together and they came on for hearing before Moses LJ on 12 December 2013. The Lord Justice dismissed the appeal and dismissed the claim for judicial review. The claimant in those proceedings, Ms Oldfield, is aggrieved by that decision. She contends that the judge fell into error, in particular because he wrongly concluded that the Secretary of State and the Planning Inspector had correctly concluded that there would be no significant cumulative effect on the development of the Arlington area in conjunction with Dreamland.
Accordingly, she applies for permission to appeal on four grounds as set out in her notice of appeal. Laws LJ refused the application on the papers. The applicant renews her application today represented by Mr Ian Dove QC to whom I am most grateful for his concise and focused submissions. Mr Dove submits that the Secretary of State fell into error in paragraph 24 of his decision letter in which he rejected the suggestion that there was need for a cumulative assessment of the Arlington site and the Dreamland site.
Mr Dove draws my attention to not only the relevant European Directive, but also the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. Schedule 3 of those regulations requires that when the characteristics of a development are being considered, the decision maker must have regard in particular to "the accumulation with other development". He submits that the Secretary of State fell into error in paragraph 24 in failing to have regard to the cumulative effect of the development of the Arlington site and the proposed development of the Dreamland site.
Mr Dove then turns to the judgment of the learned judge and draws my attention to, in particular, paragraph 59 of that judgment. In the last sentence, the learned Lord Justice says that the Secretary of State and the Inspector "concluded that there were no significant cumulative effects and that the likely significant effects flow from Dreamland and not from the combined effect of both projects". Mr Dove submits that that is wrong, having regard to paragraph 24 of the Secretary of State's letter. I can see that these submissions are properly arguable and raise matters fit for consideration by the Court of Appeal.
The Lord Justice in his judgment referred to boxes 11, 26 and 27 of the screening decision as showing that adequate consideration had been given to the cumulative effect of the Dreamland development and the Arlington development. Mr Dove has made submissions on those boxes. Box 11, as he points out, is focused on the effects of the Arlington development on the Dreamland site. If one turns to boxes 26 and 27, in the case of box 26, the focus is upon the access into the Dreamland site and the Arlington site. In box 27, there was reference back to the findings in box 26.
Mr Dove submits that when one reviews the screening decision as a whole, boxes 11, 26 and 27 do not indicate a proper consideration of the cumulative effects on the environment of the combined developments at Dreamland and Arlington Square. Mr Dove reminds me that the Arlington site and the Dreamland site are adjacent to a wetland area of international importance, a special protection area, a special area of conservation and a site of special scientific interest which is a habitat for wintering and breeding birds. I have come to the conclusion that the matters which Mr Dove raises are properly arguable. The appeal has a real prospect of success.
Turning to the grounds of appeal, the principal ground is number two. The first ground of appeal is linked with the second ground of appeal. I shall, therefore, grant permission on grounds one and two. It seems to me that ground three adds nothing to grounds one and two. Ground four raises matters which do not have a real prospect of success.
In the result, therefore, I grant permission on grounds one and two and refuse permission on grounds three and four.
[2014] EWCA Civ 1446
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD Administrative Court
LORD JUSTICE MOSES
CO/10709/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Vice President of the Court of Appeal Civil Division
and
Lady Justice Macur DBE
Case No: C1/2013/3776 & C1/2014/0185
and
Miss J Wigley (instructed by Richard Buxton Environmental & Public Law Solicitors) for the Appellant
Mr R Warren QC (instructed by Treasury Solicitors) for the 1 st Respondent 1 st Interested Party (Thanet D C) Did not appear
Mr N King QC and Mr R Moules (instructed by Osborne Clarke) for the 3 rd Respondent
Hearing dates: 10 September 2014
The issue raised in this appeal is whether the proposed redevelopment of a site on the seafront at Margate ought to be subjected to an environmental impact assessment (EIA). The site comprises Arlington House and Arlington Square. I shall refer to it as "the Arlington site". On 13 June 2013 the Secretary of State granted planning permission to Metropolitan Property Realizations Limited (MPRL) for the proposed redevelopment which would involve the construction of a Tesco Superstore with parking, services and an access road; the refurbishment of Arlington House; the construction of a 60 bed hotel; the demolition of existing retail premises and a 2-storey car-park; and the development of necessary sewerage infrastructure. Some 500 car parking spaces for leisure and tourist use would be lost. The grant of planning permission followed the recommendation of an Inspector's Report dated 21 December 2012. The Secretary of State had previously issued a screening direction on 18 July 2012 to the effect that no EIA was necessary.
In consolidated proceedings in the Administrative Court the appellant, Louise Oldfield, sought to challenge the screening decision, the Inspector's Report and the grant of planning permission. She is a local resident and businesswoman. She is also the Chair of the Margate Conservation Area Advisory Group and has acted on behalf of Friends of Arlington Margate. Her proceedings in the Administrative Court included both an application for a judicial...
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R James Kenyon v Secretary of State for Communities and Local Government
...of cumulative impact. 43 A similar situation arose in R (Oldfield) v Secretary of State for Communities and Local Government [2014] EWCA Civ 1446, where Maurice Kay L.J. said: “24. …It is important that an assessment is made in the light of what is known and what is reasonably predictable o......