R Trevone Objectors Group v (1) The Cornwall Council (2) First Step Home Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | HHJ Birtles |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWHC 4091 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2013 |
| Docket Number | Case No: CO/5790/2012 |
[2013] EWHC 4091 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Birtles
(Sitting as a Deputy High Court Judge)
Case No: CO/5790/2012
Mr Charles Banner (instructed by DAC Beachcroft LLP) for the Claimant
Mr Sancho Brett (instructed by Cornwall Council Legal Services) for the Defendant
Introduction
This is a claim by Trevone Objectors Group seeking to challenge the grant of full planning permission by The Cornwall Council to First Step Homes Ltd for the development of 15 affordable dwellings (13 discounted open market dwellings and 2 social rented dwellings) and associated works on land at Trevone Farm, Trevone Road, Trevone, Padstow, Cornwall, in a decision notice dated 26 th March 2012 pursuant to an application for planning permission dated 26 th October 2009 with a reference number of E1/2009/01489. The Claimant is a group of 9 individuals living in Trevone who own properties close to the development. First Step Homes is a developer of affordable housing in the South West of England. The Defendant is a unitary authority and the relevant planning authority in Cornwall. The site for the development adjoins the boundary of Trevone village and lies within an Area of Outstanding Natural Beauty ("AONB").
The Claimant originally sought to challenge the Council's decision to grant permission on three grounds. By his order dated 31 st August 2012, Mr Justice Bean gave the Claimant permission to claim judicial review limited to its Ground 3 on the basis that it is was arguable. That ground alleges that the Council unlawfully failed to subject the planning application to an environmental impact assessment pursuant to EU Directive 2011/92/EUS transposed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, prior to granting permission.
In fact the correct EU Directive is EEC/85/337 which has been incorporated into UK domestic law by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations"). Nothing turns on that in this case.
The Claimant is represented by Mr Charles Banner of Counsel the Defendant is represented by Mr Sancho Brett who is in-house Counsel for the Defendant.
I heard the judicial review on 25 th November 2013. At the conclusion of the hearing I reserved judgment.
The Factual Background
The Site is within the Cornwall AONB
An AONB designation represents "the highest status of protection in relation to landscape and scenic beauty" in the UK: see paragraph 21 of PPS7 Sustainable Development in the Countryside, which was the applicable planning policy at the time of the Permission. Its importance as a consideration in planning decisions is enshrined in statute under s.85(1) of the Countryside Rights of Way Act 2000 ("the 2000 Act"), which provides:
"In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty."
Paragraph 5.31 of the Council's Local Plan (the North Cornwall Local Plan 1999) notes that "the primary purpose of AONB designation is to conserve natural beauty". Paragraph 5.32 goes on to state that "the boundaries of the AONB are drawn to incorporate only the very best landscapes", and even outside the boundaries "often there will be peripheral areas of considerable quality where badly sited development could have an impact on the AONB".
Paragraph 5.31 of the Local Plan states that "all major development proposals in an AONB should be accompanied by an environmental assessment" Mr Banner asks me to note that:
a. "Major development" is defined in Article 2(1) of the Town and Country Planning (Development Management Procedure) Order 2010 ("the DMPO") — a statutory instrument which sets out procedural rules for all planning applications submitted to local authorities — as "the provision of dwelling houses where (i) the number of dwelling houses to be provided is 10 or more", a definition which includes the Development in the present case. The same definition was included in the DMPO's predecessor, the Town and Country Planning (General Development Procedure) Order 1995 ("the GDPO"), which was in force when the Local Plan was adopted, at Article 8(7); and
b. The term "environmental assessment" in paragraph 5.31 was a reference to EIA. See the definitions section on page 21 of the Local Plan, which uses precisely the same language as Reg. 2(1) of the EIA Regulations in stating that "An EA is required if a particular development is likely to have a significant environmental effect by virtue of its nature, size or location."
Notwithstanding the above, in a screening opinion dated 17 th May 2011 (" the Screening Opinion") the Council expressed the view that the Development was not EIA Development. The reasoning for this was set out in an accompanying checklist. In particular:
a. At paragraph 3(d)–(e) that there would be a "high" probability of "permanent" harm to the landscape and the agricultural land of the AONB in respect of which the "possibility of reversibility…is low".
b. At paragraph 3(a), however, the Council stated that such harm would be "localised" i.e."constrained to an area that is small in relation to the overall AONB designation" and "will not be excessive to the wider character of the area". At paragraph 3(c) "the limited area of the site in relation to the overall AONB designation" was said to increase the absorption capacity of the AONB in this location.
The officer's report dated 14 th January 2010 concluded that the Development would have an "adverse landscape impact to an AONB" (p.65) and would be "highly visible from most nearby public vantage points, including the adjoining roads and public footpaths" (p.60), but that the alleged significant affordable housing need in the area "would outweigh the anticipated level of harm to the surrounding area — albeit on fine balance" (p.65).
Subsequently, on 9 th November 2011 the Council formally advertised the application as being a departure from Policy ENV1 of the Local Plan. The Council's summary reasons for granting planning permission in its Decision Notice thereafter expressed the conclusion that the Development is in breach of Policy ENV1. Policy ENV1 provides that development within or near to AONBs "will not be permitted where they adversely affect the character and amenity of these areas unless the development is required in the proven national interest and no alternative sites are available." It therefore follows that the Council concluded that the Development would "adversely affect the character and amenity" of the AONB.
The Legislative Framework
The purpose of the EIA Directive is to require a structured assessment, which is subject to public participation, of the environmental effects of "projects which are likely to have significant effects on the environment": see Art.1(1).
Article 4 of the Directive draws a distinction between (a) types of development which are deemed in all circumstances to be likely to have significant effects on the environment and must therefore always be subject to EIA and (b) types of development which may be likely to have significant effects and which must be subject to 'screening' to assess whether they would (in which case EIA is required). The former are contained in Annex I of the Directive and the latter in Annex II.
This distinction is carried across in to the EIA Regulations by Reg. 2(1), which defines "EIA development" as:
"…development which is either –
a. Schedule 1 development; or
b. Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
Schedule 1 transposes Annex I of the Directive and Schedule 2 transposes Annex II.
Schedule 2 is a table which is in two columns. Column 1 lists certain types of development. Column 2 sets out size thresholds. The definition of "Schedule 2 development" in Reg.2(1) refers to these columns:
""Schedule 2 development" means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where –
(a) any part of that development is to be carried out in a sensitive area; or
(b) Any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development."
The size thresholds are therefore disapplied where the development would be in a "sensitive area". That term is also defined in Reg. 2(1). For present purposes it is sufficient to note that the definition includes Areas of Outstanding Natural ("AONB").
It is common ground that the Development in the present case was Schedule 2 development and was in an AONB
Part 2 of the EIA Regulations enables a local planning authority to issue a screening opinion indicating its view as to whether a proposed development falling within schedule 2 is EIA Development within the meaning of Reg. 2(1), and therefore requires EIA, on the basis that it is "likely to have significant effect on the environment by virtue of factors such as its nature, size or location".
The screening criteria for considering whether a development is likely to have significant...
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