Younger Homes (Northern Ltd) v First Secretary of State and Calderdale Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,SIR MARTIN NOURSE,LORD JUSTICE LAWS,LORD JUSTICE WALL,THE PRESIDENT |
| Judgment Date | 30 June 2004 |
| Neutral Citation | [2004] EWCA Civ 270,[2004] EWCA Civ 1060 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 2004 |
| Docket Number | C3/2003/2625 |
[2004] EWCA Civ 1060
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand
London, WC2
The President of The Family Division
(Dame Elizabeth Butler-Sloss)
Lord Justice Laws
Lord Justice Wall
C3/2003/2625
MR R HARWOOD (instructed by Eaton Smith) appeared on behalf of the Appellant
MR J LITTON (instructed by the Treasury Solicitors) appeared on behalf of the First Respondent
MR V FRASER QC (instructed by Calderdale Metropolitan Borough Council) appeared on behalf of the Second Respondent
Wednesday, 30th June 2004
This appeal is brought by the unsuccessful claimants, Younger Homes (Northern) Limited, against the decision of Ouseley J given in the Administrative Court on 26th November 2003 in proceedings pursuant to section 288 of the Town and Country Planning Act 1990. The learned judge below declined to quash a planning permission which had been granted by the respondent First Secretary of State. Permission to appeal was refused on consideration of the papers by Buxton LJ on 12th January 2004, but granted by Maurice Kay LJ and Sir Martin Nourse after a hearing on 18th February 2004.
To introduce the case, I can do no better than set out the first two paragraphs of Ouseley J's judgment:
"1. 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.
2. 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."
In order to understand the material history and the issues in the case, it is convenient first to refer to the relevant legislation.
There being no issue as to the efficacy of the transposition of the European measure into English law, I need not set out provisions contained in the Environmental Assessment Directive. I may turn at once to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
Regulation 2(1) defines "environmental impact assessment application" as an application for planning permission for environmental impact assessment development. "Environmental impact development" means either Schedule 1 development, or Schedule 2 development which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. It was and is common ground that the development in question here was Schedule 2 development, and I need not go into the details of that. It was not however agreed that the development would have any significant environmental effects within the meaning of the regulation.
Regulation 3(2) prohibits the planning authority or the Secretary of State from granting planning permission pursuant to an application to which the regulation applies unless the decision maker has first taken the "environmental information" into consideration. The environmental information means an environmental statement, which has a special definition, and associated procedures. Regulation 3 applies by force of regulation 3(1) to every environmental impact assessment application. As Ouseley J observed at paragraph 5 of the judgment:
"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."
The Regulations indeed provide such a system. I should first set out the definition in regulation 2(1) of "screening opinion": "a written statement of the opinion of the relevant planning authority as to whether development is EIA development". "Screening direction" means: "a direction made by the Secretary of State as to whether development is EIA development".
The application in this case had, as I have said, been for Schedule 2 development. It had not when submitted to the local planning authority been the subject of either a screening opinion or a screening direction and it had been submitted without an environmental statement. In circumstances such as those, in the ordinary way regulation 7(1) provides that:
"… paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1) ."
Regulation 5 provides so far as material as follows:
"(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.
(2) A request for a screening opinion shall be accompanied by … [various matters are set out]
(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.
(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request.
(6) Where an authority -
(a) fail to adopt a screening opinion within the relevant period mentioned in paragraph (4), or
(b) adopt an opinion to the effect that the development is EIA development;
the person who requested the opinion may request the Secretary of State to make a screening direction."
In this case, as appears from Ouseley J's introductory summary which I have quoted, the Secretary of State called in the application for his own determination. That being so, it is necessary to consider the terms of regulation 8(1), which provides:
"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) ."
Regulation 6 paragraphs (3) and (4) provide as follows:
"(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."
In summary then when the Secretary of State, on a call-in application such as this, is faced with a state of affairs to which paragraph 1(a), (b) and (c) of regulation 8 apply, he has to adopt the regulation 6 paragraph (3) and (4) procedure and in effect make a screening direction within the stipulated time.
I may now go to regulation 4, which is...
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