The Queen (on the application of Mrs Gillian Hughes) v South Lakeland District Council Old Brewery (Ulverston) Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Waksman |
| Judgment Date | 28 November 2014 |
| Neutral Citation | [2014] EWHC 3979 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 November 2014 |
| Docket Number | Case No: CO/17269/2013 |
[2014] EWHC 3979 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
PLANNING COURT
His Honour Judge Waksman QC
(sitting as a Judge of the High Court)
Case No: CO/17269/2013
and
Ned Westaway (instructed by Richard Buxton Environmental and Public Law Solicitors) for the Claimant
Jonathan Easton (instructed by Legal Services Group, South Lakeland District Council) for the Defendant
David Manley QC (instructed by DLA Piper UK LLP Solicitors) for the Interested Parties
Hearing date: 1 October 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is a challenge by way of judicial review to a decision of South Lakeland District Council ("the Council") taken on 23 October 2013 by which it granted planning permission and conservation area consent ("the Permission") to the First Interested Party, Old Brewery (Ulverston) Limited, to demolish buildings at, and redevelop, the site of the former Hartley's Brewery in Ulverston ("the Site"). The First and Second Interested Parties are the owners of the Site. I shall refer to them collectively as "the Owners".
The claim is brought by Ms Gillian Hughes, who lives about 200m from the Site. She belongs to the residents' group called Keep Ulverston Special ("KUS") which is opposed to the Development.
The challenge is made on five grounds:
(1) Ground 1: The screening opinion dated 21 January 2013 ("the Screening Opinion") was defective;
(2) Ground 2: The Council in making its decision failed to give priority weight to the impact of the Development on the local conservation area and the assessment of heritage impacts was otherwise defective;
(3) Ground 3: The Council wrongly excluded the question of retail need from its assessment of the planning merits;
(4) Ground 4: The Council did not recognise or give proper weight to the Development Plan; and
(5) Ground 5: The reasons given for granting the permission were defective and/or unintelligible.
BACKGROUND
A plan of the Site is shown at p105 of the Bundle. Some buildings will be demolished while others are to be retained and a new supermarket, car park and a retail/office building will be erected. It lies on the edge of the centre of Ulverston, a well-known small market town in the Lake District. Brewing first commenced on the Site in 1755. The whole of the Site lies within the Ulverston Conservation Area.
In 1993 Conservation Area Consent ("the 1993 Consent") was given to demolish a number of buildings on the Site including the Brewery Tower ("the Tower"). However, not all of the relevant buildings were demolished and in particular the Tower remains. The Council contends that the 1993 Consent remains valid. Mrs Hughes does not accept this.
In August 2010 the Site was considered for listing by English Heritage but despite its clear local significance, it was judged not to meet the relevant criteria.
An initial application for planning permission and Conservation Area consent was made in 2011 but withdrawn in December 2012 due to concerns over the design of the then-development and its local impact. A revised proposal, which is the one now permitted, was submitted on 7 January 2013.
By a letter dated 30 November 2012, English Heritage wrote, stating that although the revised scheme would impact upon the character and appearance of the conservation area, it was clear that considerable efforts had been made to mitigate any harmful impacts and as a result it did not believe that the proposal would lead to substantial harm. Accordingly the process set out in paragraph 133 of the National Planning Policy Framework ("the NPPF") need not apply and other public benefits of the scheme could be weighed by the Council. I deal with the relevance of this part of the NPPF below.
A number of reports and statements were furnished with the application. These included a damage and flood risk assessment, a Geoenvironmental Ground Investigation and a Transport Assessment, all dated December 2012, an Environmental Noise Assessment dated 14 December 2012 and a Bat and Nesting Bird Survey dated 14 November 2012 ("the Reports").
Pursuant to a request made on 20 December 2012, Ms Lawson, the Council's Principal Planning Officer, produced the Screening Opinion on 21 January 2013. The lengthy and detailed Planning Officer's Report of almost 40 pages (see 1/312–171) dated 25 April 2013 ("the Report") recommended the grant of permission subject to various conditions and a s106 agreement. At a meeting the same day, the Planning Committee resolved by a bare majority (in favour, 6 against and 2 abstentions) to grant permission.
On 25 June 2013 the Secretary of State refused a request to call in the application. The formal grant of permission followed on 25 October 2013.
GROUND 1: THE SCREENING OPINION
The Law
The Council accepted that a Screening Opinion was necessary because the area of the development was more than 0.5 hectares and it involved demolition. Although the Screening Opinion refers to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 ("the 1999 Regulations"),by January 2013 they had been replaced by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 Regulations ").One particular difference between the two regimes is that Regulation 4 (7) of the 2011 Regulations expressly states that the screening opinion should be accompanied by a written statement "giving clearly and precisely the full reasons for that conclusion." Given that Ms Lawson thought that the 1999 Regulations still governed,she may not have had that injunction in mind.
A "Schedule 2" development, which this one was, would require an EIA where in the screening opinion the local planning authority (" LPA") determines that it "is likely to have significant environmental effects because of factors such as its nature size or location" ("EIA Development"). In deciding that question, the LPA must take into account such of the selection criteria in Schedule 3 as are relevant. Those criteria are the same for both the 1999 and 2011 Regulations. They are the characteristics of the development, its location, and the characteristics of the potential impact, each broken down into various sub-criteria.
Circular 02/99: "Environmental Impact Assessment" ("02/99") provides guidance on the sorts of case which, in the light of Schedule 3, will be found in a screening opinion to be EIA development. They are major developments of more than local importance, developments in environmentally sensitive locations and those with particularly complex and potentially hazardous effects. But paragraph 4 of 02/99 emphasises that it is not possible to formulate a universal test for whether a given Schedule 2 development requires an EIA. The question must be considered on a case-by-case basis. What can be offered are broad indications as to whether it is likely or not likely to require an EIA.
It therefore follows that just because a development is not of more than local importance, for example, that it will not require an EIA. See R (TWS) v Manchester City Council [2013] EWHC 55 at paragraph 121 and also the observation of Moore-Bick LJ in (R) Bateman v South Cambridgeshire District Council [2011] EWCA 157 at paragraph 28 that "the three criteria…[in 02/99] are couched in terms so broad that they offer only general guidance in relation to the kind of projects which require an EIA."
The domestic jurisprudence on the approach to be taken by a Court to a Screening Opinion has been helpfully summarised by Lindblom J in R(Thakeham Village Action) v Horsham District Council [2014] EWHC 57 at paragraphs 25–31. Summarised yet further:
(1) The European Court will interfere only where there had been a manifest error of assessment of the question of significant environmental impact. In R (Loader) v Secretary of State [2013] EnvLR 7, Pill LJ endorsed paragraph 34 of 02/99 which stated that EIA would be required in only a very small proportion of Schedule 2 developments;
(2) The role of the Court should be limited to are view of the decision as to EIA on Wednesbury grounds;
(3) While the LPA does not need to set out at length the considerations taken into account in the Screening Opinion, its essential reasoning must be plain; this of course is now superseded by the express terms of Regulation 4 (7) of the 2011 Regulations which apply here;
(4) Just because there is some uncertainty about the likely effects of the development does not mean that the LPA must conclude that an EIA is required. It depends if there is sufficient in formation available to enable a decision on the issue reasonably to be made. A screening opinion is a decision made almost inevitably on the basis of less than complete information. It is an initial assessment of an intended proposal and the Courts should not impose too high a burden on LPAs;
(5) The LPA's reasons may be contained in the Screening Opinion itself or separately if necessary combined with additional material supplied on request. See Bateman. And Regulation 4 (7) referred to above speaks of reasons "accompanying" the Screening Opinion.
It is clear from paragraph 43 of Loader that when considering the overall question, any proposed ameliorative or remedial measures can be taken into account provided that the uncertainties are not such that a negative decision cannot be taken. Put another way, the proposed remedial measures...
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