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Environmental
This page containsa report on the Buglife case dealing with conservation and a development that was likely to interfere with diversity;
the Environmental Impact Assessment regulations made in the wake of the ECJ case of Barker;
R (Baker) v Bath and North East Somerset - planning permission quashed because no EIA carried out - letter of advice to planning authorities in the light of that case and Mellor; and
Regional spatial strategy set aside because of failure to comply with EU directive and EIA regulations.
Conservation
Development likely to interfere with biodiversity
R (on the application of Buglife - The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation
[2009] EWCA Civ 29
Summary
The local planning authority’s approach on granting planning permission for a development likely to interfere with the biodiversity of invertebrates was found by the Court of Appeal to be an appropriate and lawful one. It had taken the relevant material considerations into account.
Facts
Buglife – a conservation trust challenged the decision of the Thurrock Thames Gateway Development Corporation to grant planning permission for the construction and operation of a distribution depot on the site of a former power station.
The continued survival of rare and endangered invertebrates was challenged by the proposed development. Although the planning application had been accompanied by an environmental impact assessment, which addressed the impact the proposed development would have on the ecology, the national conservation body Natural England objected to the proposal. This objection was later withdrawn subject to the local authority approving a phasing plan to secure the survival of the invertebrates and to conserve and enhance the ecology in the area.
The local authority granted planning permission after weighing the short-term harm that might be caused to the wildlife against the long-term benefits of the development. The grant of planning permission was subject to a s106 agreement and a condition requiring a phasing plan to be submitted and approved by the local authority.
Buglife challenged the grant of planning permission in the High Court where the claim was dismissed.
Submissions
In the Court of Appeal it was submitted that the local authority had failed to apply the requirements of Planning Policy Statement 9 in that it had been required to examine local possible alternative site for the development, that it had failed to decide whether the desirability of protecting the site for wildlife purposes outweighed the need for the scheme and finally that in any event the mitigation measures ought to have been part of the environmental impact assessment and therefore the phasing plan should have been in place before permission could have been granted.
Decision
The Court of Appeal rejected these submissions and dismissed the appeal holding that while it was correct that alternatives sites were given scant consideration in the officers’ report the factors that the local authority had had regard to in granting permission rendered the approach lawful and appropriate. It was permissible for the local authority to have considered the obvious advantages of the development at the site in the urban development area when assessed against the limited adverse effected including in respect of the conservation of biodiversity, mitigation measures and positive enhancement of the environment.
The local authority had taken an overall and long term view which it was entitled to do having regard to the information before it. Its findings that the harm would not be significant were reasonable and it was entitled to have regard to the mitigation proposed when making the decision to grant permission. It was also entitled to give significant weight to the response of Natural England to the proposal being the statutory consultee in relation to these matters. There was no requirement to seek the details of the phasing in advance of deciding to grant planning permission. The decision had had regard to the proposals to mitigate and had required the s106 agreement and imposed a phasing condition. That was adequate to address the issues and was sufficient to result in the withdrawal of Natural England’s objection.
Citation
Pill LJ 51 and 52:“…A phrase-by-phrase analysis of PPS9, which is not to be construed as a statute, does not appear in the officers’ report or in the minutes. Considerable evidence on the main issues was, however, available and was sufficiently analysed by the respondents, and by Natural England, in the context of the respondents’ overall duty to have regard to the purpose of conserving biodiversity. I consider that the approach of the respondents, and their conclusion, were justified in this case. In analysing this planning decision, consideration of the larger picture, the main issues, should not be defeated by over attention to detail, with the risk of thereby losing, in common parlance, the wood for the trees. I agree with the judge’s conclusion and I would dismiss the appeal.” Comment
The Court of Appeal made it clear, inter alia, that as long as the local planning authority had had regard for the policy guidance contained in PPS9, it was not necessary for officers’ report to contain a detailed analysis of that guidance.
Environmental Impact Assessment
New regulations
The Town and Country Planning (Environmental Impact Assessment) (Amendment) (England) Regulations 2008 (SI Number: 2008/2093)
These extremely important regulations rectify the position declared to be unlawful by the ECJ in R (on the application of Barker) v Bromley London Borough Council (Court of Justice of the European Communities (First Chamber) 4 May 2006).
The ECJ had ruled that the UK failed adequately to transpose Directive 85/337/EEC (“the EIA Directive”). The Regulations did not provide for the possibility that an Environmental Impact Assessment (“EIA”) may be required after outline planning permission had been granted.
The 2008 Regulations recognise that an EIA may be necessary at the Reserved Matters stage. In essence they provide for an EIA to be carried out for a proposed project at reserved matters stage, where either EIA was not carried out at the earlier stage of outline planning permission, or additional significant environmental effects came to light after outline planning permission was granted. The Explanatory Memorandum to the 2008 Regulations states at Paragraph 7.2:"It is envisaged that the requirement for EIA to be carried out at a subsequent stage of a multi-stage consent procedure may arise in the following circumstances and the Regulations are drafted accordingly:- Where EIA should have been required at the outline stage, but the local planning authority did not (for whatever reason) issue a screening opinion;
- Where a screening opinion was issued at the stage at which an application for outline planning permission had been made, to the effect that EIA was not required, but on reconsideration at reserved matters stage the local planning authority now considers that there are likely to be significant effects on the environment;
- Where EIA was carried out at the outline stage, but the local planning authority consider that further information is now required in order for the environmental statement to satisfy the requirements of the EIA Directive."
No EIA carried out
Grants of planning permission quashed
R (on the application of Baker) v Bath & North East Somerset Council
[2009] EWHC 595 (Admin)
Summary
In this important case the council’s decision to grant planning permission to a waste disposal company to carry out further development of a waste disposal facility was quashed because no EIA was carried out prior to the grant of permission. The failure to carry out an EIA was in breach of the EU directive. The relevant regulations do not meet the requirements of the directive.
Facts
The process undertaken by the waste disposal facility gave off unpleasant odours, which led to complaints by local residents. No environmental impact assessment was undertaken before the grant of planning permission.
The Secretary of State contended that an EIA was not necessary as the development was a modification to existing permission and that the further development did not cross the threshold contained in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 Sch.2 para.13 column 2, which implemented the EU Directive. Therefore there was no need for an environmental impact assessment before planning permission was granted.
Decision
The court rejected this contention and held that this was contrary Article 2 (1) of the Directive, which stated that projects that were likely to have a significant effect on the environment had to be subject to an environmental assessment. It was clear from Annex II para.13 to the Directive that "Any change or extension of projects listed in... annex II, already authorized... which may have significant adverse effects on the environment " required a fresh consideration of whether an environmental impact assessment was necessary.
It was not therefore appropriate, in the light of the jurisprudence of the court and the purpose behind the Directive, to adopt an approach that only considered the modification itself and not the effect on the development as a whole of the modification. Accordingly the Court held that Sch.2 para.13 column 2 to the Regulations did not properly implement the Directive as it sought to limit the application of the threshold to the further development where it should have assess the cumulative effect that the additional development would have on the project as a whole
The challengers to the permission also contended that the regulations failed to ensure that members of the public were informed that they were entitled to request the Secretary of State to consider the need for an EIA before planning permission was granted.
Article 10(a) of the Directive required that members of the public concerned with a development should have "access to a review procedure before a court of law or another independent and impartial body... to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provision of this Directive... in order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures."
The Regulations did not comply with art.10(a) of the Directive as there was no requirement that concerned members of the public be informed of their right to make representations to the secretary of state.
Accordingly, the grants of planning permission were quashed.
Letter to planning officers
Letter to Chief Planning Officers: Environmental Impact Assessment (EIA) - Implications of recent judgments
This letter from the Secretary of State provides advice to local planning authorities in relation to two issues arising from the following two cases, both in connection with Environmental Impact Assessment.- R (on the application of Baker) v Bath and North East Somerset Council [2009] EWHC 595 (Admin)
- R (on the application of Mellor) v Secretary of State for Communities and Local Government [2009] EUECJ C-75/08.
The first issue relates to the correct approach to the assessment of likely significant effects following the High Court decision in Baker; and the second in respect of the extent of the need to provide reasons for a negative screening opinion when requested by a third party following the decision of the European Court of Justice in Mellor.
Regional spatial strategy
Strategy set aside because of failure to comply with EU directive and environmental assessment regulations
City and District Council of St Albans v Secretary Of State For Communities & Local Government
[2009] EWHC 1280 (Admin)
Summary
This decision is a successful challenge to the Regional Spatial Strategy (RSS) published by the Secretary of State for the East of England. As no reasonable alternatives to development that might affect the green belt had been identified or examined in the environmental reports obtained in relation to those towns there was a breach of the European Directive (2001/42) and the Environmental Assessment of Plans and Programmes Regulations 2004. The policy was therefore quashed.
Facts
The RSS contained policies that pertained to the allocation of housing development in Hemel Hempstead, Welwyn Garden City, Hatfield and Harlow. These areas were identified as being key centres for development and change.
The local authorities challenged these policies which had emerged as part of the revisions to the draft RSS. The local authorities contended that alternatives to these policies affecting the four towns contained in the plan had not been identified, described or evaluated in the environmental reports produced before the revision to the plan had been adopted contrary to European Directive 2001/42 art.3(1) and(4) and the Environmental Assessment of Plans and Programmes Regulations 2004. In the circumstances, it was contended that the plan had been adopted without an environmental assessment which fulfilled statutory requirements having been made.
Held
The Court held that Article 5 of the Directive and reg.12(2) of the Regulations required that reasonable alternatives to development had to be identified, described and evaluated before a choice was made as to how a plan should be modified. Although it was likely that the extensive house building that had been identified and accepted as being necessary would involve some erosion into the Green Belt, it was not inevitable that the allocations necessarily had to be around the towns identified.
It was therefore necessary for reasonable alternatives to have been considered. As no reasonable alternatives to development that might affect the green belt had been identified or examined in the environmental reports obtained in relation to those towns there was a breach of the Directive and the Regulations.
The policies were therefore quashed. In deciding whether or not to exercise his discretion to quash the policies the judge quoted Lord Hoffmann's observations in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at 616D to E:"Although section 288(5)(b), in providing that the court "may" quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires ..." The claim was not successful in respect of Harlow as it was considered that the environmental effects of the expansion had been considered and alternatives addressed in the environmental reports obtained through an iterative process. Therefore a further environmental report had not been necessary before deciding that expansion should be located there.
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