The Queen and Others v Northumberland County Council
| Jurisdiction | England & Wales |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] EWHC 373 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4286/2009 |
| Date | 12 March 2010 |
[2010] EWHC 373 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MANCHESTER)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Before : HIS HONOUR JUDGE PELLING QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/4286/2009
Mr Sasha White (instructed by Halliwells LLP) for the Claimant
Mr Alan Evans (instructed by Mr Peter Bracken, Solicitor, Northumberland County Council) for the Defendant
Hearing dates: 23 rd February 2010
Crown copyright©
HH Judge Pelling QC:
Introduction
This is the substantive hearing of the Claimant's claim for judicial review of the decision of Tynedale District Council, issued on 6 th February 2009, to grant full planning permission for a mixed retail office and residential development at land off Front Street and Station Road, Prudhoe in Northumberland and outline permission for further residential development and relocation of the United Services Club (“the scheme”). The Defendant is the successor authority to Tynedale District Council and for convenience I refer to both as “the Defendant”.
The Claimant contends that the scheme was one to which the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (“the Regulations”) applied and that an Environmental Impact Assessment ought to have been required before the grant of planning permission was considered. On 10 th August 2006, a request was made to the Defendant by W.A.Fairhurst & Partners (“Fairhursts”), the consultants acting for the developer, the Northumberland Estates, for a negative “screening opinion” pursuant to Regulation 5 of the Regulations (“the Fairhurst letter”). On 15 th September 2006, the Defendant issued a screening opinion which concluded that:
“The proposed development for which planning permission will be sought is not EIA development and an Environmental Impact Assessment would not be required for the proposed development”
The Claimant contends that the Defendant had insufficient information available to it to reach that conclusion and that in those circumstances, the Defendant acted irrationally in the public law sense in issuing its negative screening opinion.
The Defendant denies that it has acted irrationally as alleged but in any event contends that the Claimant has been guilty of impermissible delay in bringing this application, even though it was brought within three months of the date of issue of the decision notice granting planning permission, and that the application should be dismissed on that basis irrespective of the substantive merits.
The application for permission came before HH Judge Gilbart QC on paper on 1 st June 2010 and was refused. However permission to bring these proceedings was granted by HH Judge Waksman QC following a renewal hearing that took place on 21 st September 2009.
Legal Framework
The Regulations implement Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. By Regulation 4(1), the Regulations apply inter alia to any “Schedule 2 application”, which is defined by Regulation 2(1) as meaning:
“' … an application for planning permission …for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location.”
Regulation 4(2) of the Regulations provides:
“The local planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so.”
It is common ground that the development in this case is of a description mentioned in Schedule 2, namely that it is an urban development project the area of development of which exceeds 0.5 hectare and that it is not exempt development. Regulation 4 therefore applies to it if, but only if, it “would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location”– see Regulation 2(1). Whether it would be likely to have such effects is a matter for decision by the local planning authority, taking into account such of the criteria identified in Schedule 3 as are relevant to the development – see Regulation 4(5). Any such decision is amenable to judicial review but only on Wednesbury grounds – see (amongst others) Berkeley v. Secretary of State for the Environment [2001] 2 AC 603, 610 G-H and 614G-615A, R(Jones) v. Mansfield DC [2003] EWCA Civ 1408. Para.39, Younger Homes (Northern) Limited v. First Secretary of State [2003] EWHC 3038, Para.59 and (most recently) The Friends of Basildon Golf Course v. Basildon DC [2009] EWHC 66 (Admin), para.23.
Schedule 3 to the Regulations sets out the following criteria that must be taken into account if relevant:
“1. Characteristics of development
The characteristics of development must be considered having regard, in particular, to—
(a) the size of the development;
(b) the cumulation with other development;
(c) the use of natural resources;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of accidents, having regard in particular to substances or technologies used.
2. Location of development
The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to—
(a) the existing land use;
(b) the relative abundance, quality and regenerative capacity of natural resources in the area;
(c) the absorption capacity of the natural environment, paying particular attention to the following areas—
…
(vii) densely populated areas;
(viii) landscapes of historical, cultural or archaeological significance.
3. Characteristics of the potential impact
The potential significant effects of development must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to—
(a) the extent of the impact (geographical area and size of the affected population);
(b) the transfrontier nature of the impact;
(c) the magnitude and complexity of the impact;
(d) the probability of the impact;
(e) the duration, frequency and reversibility of the impact.”
In considering whether there are likely to be significant effects on the environment, it is necessary to consider the environmental impact of the construction process – see Gillespie v. First Secretary of State [2003] Env.LR 30 per Pill LJ at Para.39 and R(Mortell) v. Oldham MBC [2007] JPL 1679per Sir Michael Harrison at Para.38
By Regulation 5(1), a person who is minded to apply for planning permission may ask the local planning authority to state in writing whether in their opinion the proposed development would be within a description mentioned in Schedule 1 or Schedule 2 and, if so, (a) within which such description and (b) if it falls within a description in Schedule 2, whether its likely effects would be such that Regulation 4 would apply. By Regulation 5(2), such a request must be accompanied by inter alia (a) a plan sufficient to identify the land and (b) a brief description of the nature and purpose of the proposed development and of its possible effects on the environment. By Regulation 5(3) the authority shall, if they consider that they have not been provided with sufficient information to give an opinion on the questions raised, notify the person making the request of the particular points on which they require further information. Regulation 5(4) provides that the authority shall respond to a request within three weeks or such longer period as may be agreed in writing with the person making the request.
In order to adopt a negative screening opinion – that is an opinion that Regulation 4 will not apply even though a proposed development falls within a description within Schedule 2 —the LPA must have sufficient information about the project to be able to make an informed judgment as to whether it is likely to have a significant impact on the environment – see R(Jones) v. Mansfield DC [2003] EWCA Civ 1408 per Dyson LJ at para.3Whether there is sufficient information will depend on the particular circumstances. There may be uncertainties that make it impossible to conclude that there is no likelihood of significant environmental effect but in other cases there may be sufficient albeit incomplete information that enables a decision to be made as to the likelihood of significant environmental effect – see Younger Homes (Northern) Limited v. First Secretary of State [2003] EWHC 3038per Ouseley J at Para.60. It is not permissible to decide to adopt a negative screening opinion on the basis that information as to environmental effects will be provided in the future – see R(Lebus) v. South Cambridgeshire DC [2003] Env.LR 17per Sullivan J at Paras. 13 and 39 and Younger Homesper Ouseley J at Para.34. Where prospective remedial measures have been proposed for a scheme that but for such measures would have significant environmental impact then if the nature, effectiveness and availability of the proposed remedial measures are plainly established and uncontroversial that may justify the adoption of a negative screening opinion but otherwise an EIA will have to be conducted – see Gillespie (ante) per Laws LJ at 46.
Government advice has been provided to LPAs in the...
To continue reading
Request your trial
-
R Devon Wildlife Trust v Teignbridge District Council Rocklands Development Partnership (Interested Party)
...Secretary of State [2003] EWHC 3058 (Admin) at [60] (Ouseley J), R (Cooperative Group Limited) v Northumberland County Council [2010] EWHC 373 (Admin) at [8] (His Honour Judge Pelling QC), and R (Plant) v Pembrokeshire County Council [2014] EWHC 1040 (Admin) at [49] (me); but those cases......