Third party applying for planning permission to develop contaminated brownfield site — Appellant calling for separate environmental impact assessment — Whether respondent Secretary of State in error in approving remedial measures proposed by third party as part of application — Appeal allowed
In 1998, the respondent Secretary of State, contrary to his inspector’s recommendation, granted planning permission to redevelop the site of a former gasworks for residential use. The appellant, a resident of the area, challenged that decision under section 288 of the Town and Country Planning Act 1990.
It was common ground that the site was heavily contaminated and that the initial planning application had included proposals for remediation. The appellant argued that the proposals were inadequate, and that an additional environmental impact assessment should form part of the planning procedure. The Secretary of State rejected that argument and concluded that the suggested decontamination procedures would be consistent with government policy on planning and pollution control, as described in PPG 23.
The appellant maintained, inter alia, that, in reaching such a conclusion, the Secretary of State acted unlawfully or unreasonably.
Held: The appeal was allowed.
The proposed development fell within the ambit of Regulation 4 of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, and, therefore, the appropriate environmental information was to be taken into consideration prior to the grant of planning permission. In the instant case, it was clear that extensive measures were needed to combat the very real risks of environmental damage, and the Secretary of State must have taken this into account when making his decision; his conclusion that an environmental impact assessment was not required must have been reached on the basis that the measures proposed by the third party would have been effective in dealing with the problem. However, he was in error in adopting this approach.
The essence of the decision in R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin) was that where an application for planning permission required an environmental impact assessment, that information was to be provided separately so that the public could make representations as to the suitability and effectiveness of the proposed remediation or mitigation measures. The correct approach would have been to have held that, since significant environmental effects were likely, an environmental impact assessment was required, leaving the suitability and effectiveness of the proposed remediation measures to be discussed and assessed in that context.
David Wolfe (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the respondent; Keith Lindblom QC and James Pereira (instructed by Masons) appeared for the third party developer.
Vivienne Lane, barrister
