Younger Homes (Northern Ltd) v First Secretary of State and Calderdale Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 26 November 2003 |
| Neutral Citation | [2003] EWHC 3058 (Admin) |
| Docket Number | CO/5928/02 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 2003 |
[2003] EWHC 3058 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Ouseley
CO/5928/02
MR RICHARD HARWOOD (MR J BURTON 26/11/03 only) instructed by EATON SMITH SOLICITORS) appeared on behalf of the CLAIMANT
MR TIMOTHY MOULD (instructed by THE TREASURY SOLICITORS) appeared on behalf of the 1ST DEFENDANT
MR VINCENT FRASER QC (MR CJ HUNTER 26/11/03 only) (instructed by LEGAL DEPARTMENT TO CALDERDALE MDC) appeared on behalf of the 2ND DEFENDANT
On 23rd July 1999 a group of developers sought planning permission for a predominantly retail development with a swimming pool and car parking on a 3.777 hectare site in Brighouse, Calderdale, upon which stood substantial redundant agricultural foodstuff mills and silos. In May 2000, the application was called in and, following an Inquiry in January 2001, the First Secretary of State wrote to the parties in August 2001 saying that he was minded to grant planning permission subject to an agreement under section 106 of the Town and Country Planning Act 1990, which tied the development to certain infrastructure improvements. In March 2002, one of the landowning developers sold its landholding, which was a substantial part of the site, to the present Claimants. They are housebuilders who wished to develop the site or their part of it for a residential scheme. The First Secretary of State refused their request that he reopen the inquiry. The section 106 agreement was eventually signed by the other developers and, on 14th November 2002, the First Secretary of State finally issued the planning permission.
The Claimant challenges that decision under section 288 of the Town and Country Planning Act 1990 on the grounds that the First Secretary of State failed to make or to consider making a screening direction pursuant to regulations 6 and 8 of the Town and Country Planning (Environmental Impact Assessment) England and Wales Regulations 1999, SI 293. These give effect to the Environmental Assessment Directive 1985 as amended in 1997. The Claimant contends that reliance by the First Secretary of State for these purposes on any apparent screening opinion of the Calderdale Metropolitan Borough Council, the Local Planning Authority, given in early August 1999 was ineffective because, for a variety of reasons, that screening opinion was unlawful. Hence the planning permission was not within the powers of the 1990 Act and fell to be quashed. In the absence of a valid screening opinion, the obligation to subject development likely to have a significant effect on the environment to an environmental impact assessment could not be fulfilled. The Claimant expects that, if not quashed, the planning permission will become the basis for compulsory purchase of its interests.
The legislation
Article 2(1) of the Environmental Assessment Directive, as amended, provides as follows in Article 4(2) to (4):
"1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination, or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.
4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public."
There is no dispute but that the development was within Annex 2 to the Directive, as an urban development project within paragraph 10(b). Annex 3 contains the selection criteria referred to in Article 4 paragraph 3.
The 1999 Regulations transpose these obligations into domestic law. By regulation 3(2) the First Secretary of State is prohibited from granting planning permission for an "environmental impact assessment application" unless there has been an environmental statement with its associated procedures. An "EIA application" is an application for "EIA development" which, for these purposes, is defined in regulation 2(1)(b):
"'EIA application' means an application for planning permission for EIA development:
'EIA development' means development which is either—
(a) Schedule 1 development; or
(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
It is agreed that this was Schedule 2 development because it fell within the scope of an urban development project in the Schedule to the Regulations, which parallels Annex 2 to the Directive, and the size threshold of 0.5 hectare was exceeded. It was not a sensitive area. It was not accepted, however, that it was likely to have any significant environmental effect, and that is where the debate centres.
In order for the obligation in regulation 3(2) to work, it is necessary that there be a system in place for considering whether any application which falls within Schedule 2 is also EIA development because it is likely to have significant environmental effects. For these purposes this is dealt with in regulation 7. The application was submitted without an environmental statement and was for a Schedule 2 development. When submitted to the Local Planning Authority, it had not been the subject of either a screening opinion or a screening direction. Accordingly, regulation 7 required that the application be treated as if a request for a screening opinion had been made under regulation 5(1). Regulations 5(2) to (4) are as follows:
"(2) A request for screening opinion shall be accompanied by—-
(a) a plan sufficient to identify the land;
(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and
(c) such other information or representations as the person making the request may wish to provide or make.
(3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.
(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request."
Regulation 5(5) is also relevant to an argument raised by the Claimant:
"(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request."
In this case, the First Secretary of State called the application in for his own determination. Regulation 8 applies first. It is similar to regulation 7, but its precise text became the subject of some debate. Regulation 8(1) provides:
"(1) Where it appears to the Secretary of State that an application for planning permission which has been referred to him for determination—-
(a) is a Schedule 1 application or Schedule 2 application; and
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,
paragraphs (3) and (4) of regulation 6 shall apply as if the referral of the application were a request made by the applicant pursuant to regulation 5(6)."
Regulations 6(3) and (4) provide:
"(3) The Secretary of State shall, if he considers that he has not been provided with sufficient information to make a screening direction, notify in writing the person making the request pursuant to regulation 5(6) of the points on which he requires additional information and may request the relevant planning authority to provide such information as they can on any of those points.
(4) The Secretary of State shall make a screening direction within three weeks beginning with the date of receipt of a request pursuant to regulation 5(6) or such longer period as he may reasonably require."
Regulation 4 contains general provisions. The events which determine whether a development is an EIA development are in regulation 4(2)(b) and regulation 4(3):
"(2) The events referred to in paragraph (1) are—-
…
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development."
The distinction in wording reflects the Secretary of State's power to overrule the Local Planning Authority's opinion, whether on a request to overrule a positive decision or, of his own motion, to overrule a negative one.
Regulation 4(6) provides that where the screening opinion is to the effect that the development is EIA development clear, precise and full reasons have to be given for that decision. There is no equivalent provision for the contrary screening opinion. This may reflect the power of the First Secretary of State to reach a different decision anyway. A screening opinion is defined,...
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