The Queen (on the application of Karen Treagus) v Suffolk County Council Kerstin Cecilia Gliksten (Trading as the Denham Estate) (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Carlile of Berriew QC |
| Judgment Date | 24 April 2013 |
| Neutral Citation | [2013] EWHC 950 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8354/2011 |
| Date | 24 April 2013 |
[2013] EWHC 950 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Carlile of Berriew QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/8354/2011
and
Richard Harwood QC (instructed by Richard Buxton) for the Claimant
Paul Stinchcombe QC and Jonathan Moffett (instructed by Suffolk Legal) for the Defendant
Hearing date: 20 th March 2013
The Claimant applies for judicial review of the decision of the Defendant, Suffolk County Council, dated the 2 June 201In that decision the Defendant granted planning permission to the Interested Party, The Denham Estate, for the construction and operation of an anaerobic digestion plant on the Estate, at Barrow Road, Denham.
The application was made with the permission of the Court given previously, on 3 grounds, as follows (using the numbering taken from a longer list of potential grounds):
i) Ground 1: that a screening decision taken by the Defendant on the 26 May 2011, to the effect that no Environmental Impact Assessment [EIA] was required was wrong in law because it relied upon mitigation measures relating to the risk of pollution of groundwater when the content of those measures was unknown.
ii) Ground 2: that the Defendant erred in law by failing to require a bio-aerosol risk assessment, when such an assessment was required by its own policy.
iii) Ground 5: that Condition 11 attached to the planning permission unlawfully enables the Defendant to relax restrictions on the geographical area within which feedstock for the anaerobic digestion plant may be collected.
Following consideration on the papers by Robin Purchas QC (sitting as a Deputy High Court Judge) and a renewed permission hearing before Coulson J, and following an unsuccessful appeal by the Claimant to the Court of Appeal. I neither need nor propose to refer further to those earlier proceedings.
It is necessary to give a short description of the development. An anaerobic digestion plant is designed to produce energy in the form of heat and electricity through the breaking down of organic material by bacteria, in the absence of air. The process produces methane, which is then burnt in a heat and power plant. In this case some of the electricity is intended to be used on the Estate, and the surplus exported to the National Grid. The process also produces a solid and liquid residue, called substrate, which can be spread as fertiliser, and in this case would be spread on the Estate as part of agricultural activity.
An essential part of the development is a sealed, underground slurry tank. This is required to store pig slurry, which is used to trigger the anaerobic digestion process. The pig slurry would be delivered in sealed tankers and discharged directly into the slurry tank.
Ground 1: The basis of the Claim
The original screening decision treated the development as Schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA regulations). Consequently the Defendant Council had to decide whether the development was likely to have significant effects on the environment. If so, an EIA would have to be carried out. The opinion adopted by the Council concluded that an EIA was not required. In August 2010 the Claimant's solicitors wrote to the Council asserting that as a consequence of failing to give reasons, there had been non-compliance with EU Directive 85/337/EC and the implementing EIA regulations. They also told the Council that its handling of the EIA screening had failed to follow Council policy, because the Council failed to consult with relevant statutory bodies (such as the Environment Agency ( EA) and the District Council) as required by the Suffolk Waste Local Plan [WLP]
An EIA is required of those projects which fall within Schedule 2 of the EIA Regulations and are likely to have significant effects on the environment: Regulation 2. Where EIA is carried out, an Environmental Statement has to be submitted by the developer. That Statement will, amongst other matters, provide a description of the development, explain the likely significant effects of the development on the environment and 'a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment': Schedule 4, Part I, paras 1, 4 and 5
The Claimant submitted that the question of whether mitigation measures can be used as a reason to not require EIA is contentious. The Claimant's approach was that, as mitigation is part of the matters to be set out in the Environmental Statement with the hope of preventing significant effects from arising, the determination whether significant effects are likely has to be made without regard to the mitigation. It was submitted on her behalf that the Council's approach to mitigation was contradicted by the decided cases.
The Claimant's counsel Mr Harwood QC reminded the Court that in R (Lebus) v South Cambridgeshire District Council [2003] JPL 466, Sullivan J held:
" [49] [Council officers] concluded that the potential impact of the development would be insignificant given proper planning conditions and management enforceable under s 106.
[50] It must have been obvious that with a proposal of this kind there would need to be a number of non-standard planning conditions and enforceable obligations under s 106. It is precisely those sort of controls which should have been identified in a publicly-accessible way in an environmental statement prepared under the Regulations.
[51] Thus the underlying approach adopted by Mr Hussell was in error. In so far as one can discern the Council's reasoning, it was erroneous on the two grounds set out above: it was no answer to the need for an EIA to say the information would be supplied in some form in any event, and it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects?"
Correctly, counsel also drew my attention to the decision of the Court of Appeal in Gillespie v First Secretary of State and Bellway Urban Renewal Southern Limited [2003] 2 P & CR 236. There, Pill LJ stated:
"[36] When making his screening decision, the Secretary of State was not, in my judgment, obliged to shut his eyes to the remedial measures submitted as a part of the planning proposal. That would apply whatever the scale of the development, and whether (as in British Telecommunications) some harm to the relevant environmental interest is inevitable, or whether (as is claimed in the present case) the development will actually produce an improvement in the environment. As stated in Bozen, it is the elements of the specific project that must be considered, and all the elements of the project relevant to the EIA. In making his decision, the Secretary of State is not required to put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision. If the judges in the cases cited took a contrary view, I respectfully disagree, although it appears to me that both Sullivan J in Lebus, and Richards J in the present case, did not require all remedial or mitigating measures to be ignored.
[37] The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects upon the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously, but the Secretary of State is not, as a matter of law, required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases, the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects upon the environment, even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not, in my judgment, predetermined either by the complexity of the project or by whether remedial measures are controversial, although, in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration."
Laws LJ expressed his reasoning succinctly at paragraph 46:
"Where the Secretary of State is contemplating an application for planning permission for development that, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial, although I should have thought that there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly...
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