Smout v Welsh Ministers and Wrexham Cbc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Pitchford,Mr Justice Lloyd Jones |
| Judgment Date | 30 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1750 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/0188 |
| Date | 30 November 2011 |
[2011] EWCA Civ 1750
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(His Honour Judge Farmer)
Sitting at:
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Lord Justice Laws
Lord Justice Pitchford
and
Mr Justice Lloyd Jones
Case No: C1/2011/0188
Mr Richard Harwood and Ms Caroline Allen (instructed by Gamlins) appeared on behalf of the Appellant
Mr Clive Lewis QC (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
Mr Stephen Sauvain QC (instructed by Geldards) appeared on behalf of the Second Respondent.
(As Approved )
This is an appeal with permission granted by Stanley Burnton LJ on 8 July 2011 against the decision of the late HHJ Farmer QC, sitting in Wales as an additional Queen's Bench judge in the Administrative Court, by which he dismissed an application brought under section 288 of the Town and Country Planning Act 1990 to quash orders modifying two planning permissions. I shall refer them as "the orders". Stanley Burnton LJ also made protective costs orders limiting the costs liability of the appellants in the Court of Appeal to £3,500 and the costs liability of the first respondents, the Welsh Ministers, to £12,500. The appeal requires the court to revisit the law relating to environmental impact assessments and the application of the Environmental Impact Assessment Council Directive 85/337/EC. The appellant chairs the Hafod Environmental Group which opposed the making of the orders.
The orders were made under Section 97 of the Town and Country Planning Act 1990. The two planning permissions which they modified were respectively dated 10 July 1995 and 17 September 1998. These permissions permitted the infilling of 30.9 hectares of land at Haford Quarry near Wrexham with domestic, commercial and industrial refuse and associated operations. Minerals had been extracted from the quarry pursuant to earlier planning permissions dating back to 1988. The second landfill permission of 1998 was granted pursuant to an application, in effect, to change the date for approval of certain matters reserved in the first permission.
Conditions 6 and 7 in the 1995 planning permission, replicated in the 1998 permission, concerned great crested newts. They provided as follows:
"6) Prior to the commencement of the development hereby permitted a survey of the application site shall be carried out to determine the numbers of GCN present on the land and a scheme submitted to the Mineral Planning Authority, for approval by them. Such schemes shall provide details of a rescue programme for the relocation of the numbers of GCN which may be identified in the survey."
7) The land filling operations hereby permitted shall not be commenced until the GCN identified by the survey required by Condition 6 have been relocated in a suitable alternative habitat provided in accordance with a scheme to be agreed, in writing, with the Minerals Planning Authority."
The 1995 permission had been the subject of an Environmental Impact Assessment pursuant to the directive. That assessment was based on a 1990 environmental statement revised in 1992. A management plan for the great crested newts was evolved in February 1999 and the following month approval was given for reserve matters in the planning permissions. Approval of the arrangements for the newts was included. The local planning authority confirmed in a letter dated 28 March 2001 that all conditions precedent had been fulfilled. On 23 August 2006 landfilling operations began at the site. The Welsh Ministers and the local planning authority, who are the second respondents, assert that conditions 6 and 7 of the 1995 permission had been fulfilled. The great crested newts had been "relocated", partly to a habitat outside the site, and the rest remained in an area to the southwest of the site; but, as I shall show, the orders took that location out of the planning site.
On 19 July 2001 that part of the site where the newts had been relocated or remained had been designated as a Site of Special Scientific Interest because of the very presence of the great crested newts. On 7 December 2004 the European Commission listed this area, called the Johnstown Newt Sites, as a special conservation area ("SAC"). In consequence the planning authority were obliged to review the 1995 and 1998 permissions and to assess the implications in light of the conservation objectives of the SAC. In the event three modification orders were made. One took the SAC out of the area for which permission had been granted in 1998 to extract gravel. This permission had been reviewed in 2006. That order has not been called in question but is part of the context of the case. The other two modification orders are the orders under challenge. The first, made on 2 May 2007, took the SAC out of the area in respect of which the 1995 landfill planning permission had been granted and made consequential modifications. The second made on 28 November 2007 did the same in respect of the 1998 landfill permission. However, by section 98(1) of the Town and Country Planning Act 1990 a modification order which is opposed, as these were, does not take effect unless it is confirmed by the Secretary of State or in this case of course the Welsh Ministers. Accordingly an inquiry into the orders was conducted by a planning inspector between 10 and 12 March 2009.
Having considered the inspector's report and an addendum report, the Welsh Ministers confirmed the orders without modification on 14 January 2010. At paragraph 42 of the inspector's report, the inspector noted that conditions 6 and 7 of the planning permissions had been satisfied and the newts relocated. He said:
"There is no question that these conditions relate to future need."
Tipping or landfill operations had not yet occurred on that part of the planning permission site which formed the SAC: see paragraph 47 of the inspector's report. The inspector concluded and the Ministers agreed that (paragraph 153 of the report):
…subject to the submitted modifications, each Order is necessary and sufficient to safeguard: the integrity of the SAC, and populations of great-crested newts and other amphibians within the SAC, the SSSI and the amphibian compensation areas."
I may deal with two matters by way of preliminaries. First, lest there be any doubt, it is now accepted by Mr Lewis QC on behalf of the Welsh Ministers that the orders are "development consent" within the meaning of Article 1 of the directive. Secondly, and this engages the sixth ground of appeal, it may be accepted strictly for the purposes of the argument that the directive has not been transposed by any measure of domestic law, whether the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 or any other measure, so as to apply modification orders made under section 97. Even so, that is not of itself a ground for quashing the orders under Section 288. It means only that pro tanto the directive has direct effect so that it may itself be relied on as testing the legality of the orders: see for example Marks & Spencer v Commissioners of Customs and Excise [2003] QB 866, paragraph 27, cited by the learned judge below at paragraph 8 of his judgment. There is no contest but that the relevant terms of the directive are sufficiently unconditional and precise as to engage the principle of direct effect. This to my mind disposes of ground 6 in the appeal, which asserted that the failure (as it was said to be) to transpose the directive was itself fatal to the making of the orders. The Welsh Ministers, by Mr Lewis, put in a respondent's notice to assert that, on a proper construction of the 1999 regulations, the directive had in fact been transposed vis-à-vis modification orders, but because the appellant is entitled anyway to rely on the doctrine of direct effect it is not necessary, as Mr Lewis accepts, to go into the respondent's notice.
Now it is common ground that the orders are development consents for a project falling within Annex 2 of the directive. Accordingly, by Article 4.2, the member state through its relevant authority was required to determine whether an environmental impact assessment was needed. This in turn meant that by force of Article 2.1 the authority had to decide whether the orders were "likely to have significant effects on the environment by virtue inter alia of their nature, size or location". The Ministers took the view that the orders were unlikely to have such effect. They so stated in a letter of 9 March 2009, agreeing with the screening opinion to the same effect obtained by the Wrexham County Borough Council, the second respondents. Accordingly the Ministers considered that no environmental impact assessment was required. That conclusion was reiterated in the decision letter of 14 January 2010 citing the responses of the Countryside Council for Wales ("CCW") and Environment Agency Wales ("EAW") to a consultation exercise conducted by the Welsh Assembly Government. It is worth noticing, with respect, what was said by those bodies. The CCW observed:
"To conclude, we wish to affirm that the outcome of the Modification orders will be to reduce any adverse effects on the environment and will prevent any significant effects on landfill or mineral extraction on statutory sites, their associated features and on the conservation status of European protected species. We therefore consider that an EIA is not required for the purposes of informing the modification order process."
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