The Queen (on the application of Save Britain's Heritage) v The Secretary of State for Communities and Local Government Sefton Metropolitan Borough Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stadlen |
| Judgment Date | 25 July 2013 |
| Neutral Citation | [2013] EWHC 2268 (Admin) |
| Date | 25 July 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2944/2012 |
[2013] EWHC 2268 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stadlen
Case No: CO/2944/2012
Richard Harwood QC (instructed by Richard Buxton) for the Claimant
David Forsdick (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 27 November 2012
Approved Judgment
This is a case about salami slicing. It is a claim for judicial review of the decision of the Secretary of State for Communities and Local Government dated 6 January 2012 that Environmental Impact Assessment should not be required for the demolition of a Victorian Chapel in the Klondyke area of Sefton.
The principal ground of challenge is the assertion that the Secretary of State's failure to consider the demolition as part of the Phase 2 and 3 demolition and redevelopment proposals of the Sefton Metropolitan Borough Council ("the Council") in the Klondyke area and his failure to have regard to the impact of the project or to consider the cumulative effects of the demolition was unlawful. The second ground is an assertion that the Secretary of State's reasons for considering that the impact of the demolition together with the redevelopment of the chapel site and the previous clearance and the further redevelopment of Phase 1 were not likely to give rise to significant effects were neither adequate nor intelligible.
Under its first ground of challenge the Claimant argues that as a matter of fact the Council's proposed demolition of the Chapel was part of a larger project comprising Phases 2 and 3 of its proposed redevelopment of the Klondyke area of Sefton. Accordingly the Secretary of State was obliged in his screening direction to consider the demolition of the Chapel not on its own but as part of that larger project. His assertion that screening of Phases 2 and 3 was premature because no application for prior approval had been made with respect to it and his consequent consideration of the effects of the Chapel demolition without regard to any other demolition or redevelopment in Phases 2 and 3 was unlawful.
On behalf of the Secretary of State Mr Forsdick submitted that "salami slicing" is the term applied to the splitting up of projects into small sub-projects with the effect of each part coming below the thresholds for Environmental Impact Assessment ("EIA") and therefore avoiding (whether deliberately or not) the need for EIA. In the two leading Spanish cases a single long distance rail construction project was split into small "local" projects with the result that the section in question (and the project as a whole) was not subject to EIA ( Commission v Spain [2005] Env LR 20 [52]-[54] and a single project for the upgrade of the Madrid Ring road was split into 15 sub-projects with the result that the section in question (or the project as a whole) was not subject to EIA ( Ecologistas nen Accion v Ayuntamiento de Madid [2009] PTSR 458 [25], [44]-[45]. In both cases it was held that that approach was impermissible under the Environmental Impact Assessment Directive 2011/92/EU ("the Directive"). It impermissibly constituted what is commonly called "salami slicing". The true project was in each case in fact the wider whole — the complete ring road or the long distance train line.
Mr Forsdick submitted that the legal principle applicable on the facts of this case is that at the screening stage a project should not be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development — see the test enunciated by Simon Brown LJ in R v Swale BC ex parte RSPB [1991] JBL 39. However it was submitted that there is a distinction between projects which are an integral part of an inevitably more substantial development which Mr Forsdick submitted involves a single project being split into parts as in the two Spanish cases and individual projects which are justified on their merits and/or which would be pursued independently of some wider policy, even if the development, or as in this case the demolition, involved could at some future point also be part of a more comprehensive proposal. In the latter case there is no salami slicing and no unlawful or impermissible avoidance of the EIA regime.
He submitted that there is no inconsistency between a project being both a separate, independent and/or freestanding project now and also potentially at some future point part of a wider whole.
Factual background
The Klondyke area of Bootle was developed in the last decade of the 19th century and took its popular name from the Alaskan Gold rush of 1897–8. The Orrell Chapel, Springwell Road, Sefton, also known as the Welsh Presbyterian Church ("the Chapel") was built in 1902.
In April 2002 the previous Government launched the housing market renewal initiative ("HMRI") which was aimed at tackling issues of empty housing and neighbourhood decline within Pathfinder areas. The initiative provided money to help restructure the housing market so that housing could be redeveloped. Klondyke is an area of Sefton dominated by small two-storey Victorian terraced housing with no front or back gardens.
In July 2004 the Council published Supplementary Planning Guidance ("SPG") in relation to Klondyke. The Council stated that it would use the guidance as a material consideration when deciding on development proposals within the Klondyke and Hawthorn Road area. It set out in more detail how the Council would apply the policies of the draft Sefton Unitary Development Plan and would expect developers to show how their proposals dealt with the issues covered in the guidance when putting forward planning applications. It stated that it would use the document to make sure that the right development took place at the right time and to support its use of compulsory acquisition powers if necessary. It further stated that the SPG identified where redevelopment would take place and where new homes would be built. It stated that some of the proposals in the document might need to be revised and updated. It further stated that it would use the information contained in the SPG to prepare development briefs for the area which would provide more detailed information about how the new areas would be developed, including where new shops and open space would be located and which areas would be redeveloped for industrial and commercial use in respect of which there would be consultation.
The SPG stated that it was one of a number of planning policy documents that would be relevant to redevelopment proposals in the area and a diagram showing how it fitted in to the hierarchy of planning policy documents showed that it fitted in beneath the emerging unitary development plan and design and development briefs which in turn came before planning applications.
The SPG stated that the Council would support development proposals for the Klondyke and Hawthorn Road corridor area if they would help to regenerate the neighbourhood in a planned way and reflected the phasing requirements set out in the Guidance. Those requirements were set out in four tables which referred to three phases. The first table was headed "Klondyke phase development programme, units to be cleared and sites identified for re-housing". Each phase identified a number of units to be cleared; Phase 1 was headed 2004–2008. Phase 2 was headed 2006–2009 and Phase 3 was headed 2008–2012. Phase 1 provided for 320 units to be cleared, Phase 2 380 and Phase 3 130. The fourth table stated that there would be no re-housing potential in phase 3 "as this is the last area to be developed" but that the area covered by phase 3 would be able to accommodate 40 new homes in the long term. Phase 2 would have the potential for re-housing 165 but would not be available until current residents were re-housed.
The Chapel was described as a landmark providing "variety and interest within the built environment" which should be preserved. The plan in the Supplementary Planning Guidance showed the Chapel outside the proposed clearance area.
In November 2004 the Council published a Development Brief to guide future redevelopment of the Klondyke and Canal Corridor area. It was to be read in conjunction with the Supplementary Planning Guidance. It was stated that the redevelopment of the sites covered by the brief (Phases 1 and 2) would be phased to ensure the successful relocation of the existing residents, community facilities, shops and businesses within the Klondyke estate who wished to stay in the local area.
The Development Brief did not in its text refer to Phase 3. However it included a map which identified sites subject to Phase 1, Phase 2 and Phase 3 development respectively. The Chapel was shown in Phase 3 development to become open space as part of an enlarged Aspinall's Field and the Brief identified the provision of green space from different development phases. Preferred sites for green space were identified as adjacent to the canal and at the extended Aspinall's Field which in the map included Klondyke Phase 3. It also stated that the remaining areas identified in Figure 1 of the SPG (ie Phase 3) were not the subject of the Development Brief. Further development briefs would be produced for those sites at a later date.
The Brief envisaged the removal of an existing number of community and...
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