Development — Proposal for construction of tunnel under river — Transport authority applying for powers to undertake works — Environmental statement (ES) supporting application for order — Authority supplying additional information — Environment Agency withdrawing objection Claimant seeking to quash order authorising construction — Whether defendant acting unlawfully in making order — Whether ES complying with national and/or European Community rules — Application dismissed
The Tyne and Wear Passenger Transport Authority (the interested party) wanted to construct a tunnel under the river Tyne in Newcastle. It applied to the defendant Secretary of State for an order under the Transport and Works Act 1992, which gives it the power to undertake the works, accompanied by an environmental statement to comply with the Transport and Works (Applications and Objections) Procedure (England and Wales) Rules 2000.
The claimant, who lived around four miles from the proposed tunnel, initially opposed the proposal. After the interested party provided further information, the Environment Agency withdrew its objection. The defendant subsequently made the iver Tyne (Tunnels) Order 2005, which granted to the interested party the powers sought (with modifications), together with deemed planning permission under section 90(2A) of the Town and Country Planning Act 1990.
The claimant applied to quash the order under section 22 of the 1992 Act. He contended that the defendant had acted unlawfully by making an order without an environmental statement (ES) that complied with the 2000 Rules and/or Council Directive 85/337 (on the assessment of the impact of certain public and private projects on the environment), as amended. He argued that the ES was deficient in that it failed to address how the large volume of waste material that construction of the tunnel would produce or the environmental effects of handling and disposal would be dealt with. Moreover, the deficiency of the ES could not be remedied by the subsequent provision of further information.
Held: The application was dismissed.
It was implicit in the statutory provisions that, as with a planning authority under the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, the defendant had to take into account not only information contained in the ES but also information put forward in relation to related objections and representations. It would be nonsensical if he were unable to do so or if, having done so, he were obliged to require the applicant to start afresh with a new ES that included all the information that he had already considered and found satisfactory: R (on the application of Blewett) v Derbyshire Waste Ltd [2004] EWCA Civ 1508; [2005] 1 PLR 54 considered.
The decision maker had to make its decision in the light of an ES that described the likely significant effects of the project and the measures to be taken in order to avoid, reduce or remedy any significant adverse effects. It had to be provided with information that, when coupled with the need for subsequent consent, enabled it to conclude that the effects would not be significant or that appropriate mitigation measures would be taken.
In the present case, the adequacy of the information was a matter for the defendant and he had not acted unreasonably in accepting that the ES was adequate. Furthermore, nothing in the views expressed either by his inspector or the Environment Agency supported the claimant’s contention that the ES was inadequate, supplemented as it was by the further information.
David Wolfe (instructed by Public Interest Lawyers, of Birmingham) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the defendant; Stephen Sauvain QC (instructed by Herbert Smith) appeared for the interested party.
Eileen O’Grady, barrister
