R (on the application of Jedwell) v Denbighshire CC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 10 March 2016 |
| Neutral Citation | [2016] EWHC 458 (Admin) |
| Date | 10 March 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11522/2013 |
[2016] EWHC 458 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
The Law Courts
Bodhyfryd
Wrexham
Mr Justice Hickinbottom
Case No: CO/11522/2013
and
Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law) for the Claimant
John Hunter (instructed by Denbighshire County Council Legal Services) for the Defendant
John Hunter (instructed by Aaron and Partners LLP for the Interested Parties
Hearing date: 2 March 2016
Further written submissions: 4–7 March 2016
Introduction
This claim concerns two 46-metre high 50kw wind turbines and ancillary works on land at Syrior, Llandrillo, Denbighshire ("the Site"). An application for planning permission for the development was made by the Interested Parties ("the Developers") to the Defendant planning authority ("the Council"); and, on 12 July 2013, conditional permission was granted.
Prior to that grant and as part of the planning process, the Council (through one of its planning officers, Mrs Denise Shaw) adopted a screening opinion stating that no Environmental Impact Assessment ("EIA") was required. In this claim, the Claimant Andrew Jedwell, a local resident opposed to the development, contends that, as a result of the reasoning in the screening opinion being inadequate, the grant of planning permission is itself invalid and should be quashed.
The Legal Background
The relevant legal background is as follows.
In considering applications for certain major development projects, Council Directive 85/337/EC ("the 1985 Directive"), which came into force in 1988, requires an EIA, i.e. the presentation, collection, publication and assessment of information on the environmental effects of the proposed project. The 1985 Directive and various amendments are being replaced by Directive 2011/92/EU as amended by Directive 2014/52/EU ("the 2011 Directive"); but the period for transposing that Directive as amended does not expire until May 2017 and, in Wales (although not in England), the relevant position is still regulated by the 1985 Directive as implemented by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293) ("the 1999 Regulations").
The 1985 Directive is designed to ensure that developments which may have a significant effect on the wider environment ("EIA developments") are subject to enhanced consultation and assessment of that effect, with the collection and assessment of information on the environmental effects of the project, including required information from the applicant in the form of an environmental statement. By virtue of regulation 3(2) of the 1999 Regulations, an authority is prohibited from granting planning permission in respect of an EIA development unless it has first taken into account environmental information in the form of an EIA; and it is required to state in its decision that it has done so.
Some proposed developments, by their nature, attract the enhanced procedural requirements in any event ("Schedule 1 developments"). Others may attract those enhancements because they are likely to have significant effect on the environment by virtue of factors such as their nature, size or location ("Schedule 2 developments"). For these, an initial assessment of whether the particular development is likely to have such an effect is necessitated. If it is concluded that it does, then it is required to have the enhanced EIA: if it is concluded that it does not, then there is no additional requirement. Regulation 4(5) of, and Schedule 3 to, the 1999 Regulations (directly reflecting the 1985 Directive) set out matters which a decision-maker must take into account in deciding whether a development of a Schedule 2 development. Under Schedule 3, consideration must be given to the characteristics of the development having regard, in particular, to (amongst other things) "the cumulation with other development" (paragraph 1(b)).
Furthermore, paragraph 46 of Circular 02/1999: Environmental Impact Assessment (issued as guidance for the application of the 1999 Regulations, and still applicable in Wales) ("the 1999 Circular") emphasises that:
"… in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or approved development".
Annex A of the 1999 Circular contains what are described as "indicative thresholds and criteria for the identification of Schedule 2 development requiring EIA". It is made clear that they are indicative only, and are designed to provide only general assistance to local planning authorities. In respect of windfarms, paragraph A15 of that annex provides,:
"The likelihood of significant effects will generally depend upon the scale of the development, and its visual impact, as well as potential noise impacts. EIA is more likely to be required for commercial developments of five or more turbines, or more than 5MW of new generating capacity."
Where a developer considers that a proposed development may be an EIA development, he is able to ask the authority for a "screening opinion" (regulation 5(1) of the 1985 Regulations), i.e. "a written statement of the opinion of the relevant planning authority as to whether development is EIA development" (regulation 2(1)). By regulation 5(4), an authority must respond to a request for a screening opinion within three weeks of receipt, or such other time as agreed.
In respect of a screening decision, regulation 4(6) imposes an obligation upon the planning authority to give reasons, but only where it adopts a screening opinion to the effect that development is EIA development, and thus an EIA is required. The 1999 Regulations do not impose an obligation to give reasons for a negative screening opinion. The 2011 Directive, implemented in England by the Town & Country Planning (Environmental Impact Assessment) Regulations 2011 ( SI 2011 No 1824), requires reasons to be given for either a positive or a negative decision, at the time of the decision. Although the 2011 Directive as amended mandates adoption of that requirement by May 2017, Wales has not yet implemented that Directive. The position in Wales thus continues to be regulated by the 1985 Directive and the 1999 Regulations.
Although the 1999 Regulations do not impose an obligation to give reasons for a negative screening opinion, such an obligation was confirmed as a matter of European law by the European Court of Justice in R (Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 18 ("Mellor"). At [57]–[60], the court said:
"57. It is apparent, however, that third parties as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary.
58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority's screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.
59. In that regard, effective judicial review, which must be able to cover the legality of the reasons for the contested decision presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request (see Heylens v Union nationale des entraineurs et cadres techniques professionnels du football (Unectef) (2009) CJEC Case 222/86) [1987] ECR 4097 at [15]).
60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made."
Given the terms of [60] in Mellor, where a request is made to the relevant authority for reasons, it has the common appellation of "a Mellor request"; and an authority's obligation to provide reasons for a negative screening opinion following such a request is known as "the Mellor duty".
Thus, reasons are necessary for any screening opinion so that relevant persons, including members of the public, are able to consider whether the substantive screening decision is lawful; and, if they consider it appropriate, challenge it as unlawful.
The European Court proceeded to consider performance and satisfaction of that duty. At [64]–[66], it said:
"64. … [T]he determination must be such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention.
65. It cannot, in those circumstances, be ruled out that in the case in the main...
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