R (on the application of Baker) v Bath and North East Somerset Council

Development – Planning permission – Waste disposal – Company obtaining permission for green waste-disposal facility – Defendant council granting planning permission for further development – Defendants deciding environmental impact assessment (EIA) unnecessary – Claimant seeking to quash decision to permit further development – Whether domestic regulations properly implementing EIA Directive – Application grantedThe claimant lived near a waste-disposal facility that the second interested party (H) operated. H had obtained planning permission to compost “green waste” that consisted of garden cuttings. The process produced unpleasant odours, which led several individuals, including the claimant, to complaint to defendant local authority.The defendants subsequently granted three planning permissions for further developments to enable the use at the primary site to be intensified and the compost to be transported to and processed from a secondary site. No environmental impact assessment (EIA) had been carried out prior to the grant of those planning permissions.The claimant applied for judicial review to quash those decisions because the defendants had failed to carry out a screening opinion in respect of the development in accordance with the Town and County Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 and/or the Environmental Impact Assessment (EIA) Directive 85/337. Since no screening had been carried out, the conclusion that an EIA was unnecessary was substantially flawed.The secretary of state (the first interested party) contended that since the further planning applications amounted to modifications of an existing authorised development, an EIA was not required before the grant of planning permission because the further development did not cross the threshold for a project/development requiring an EIA contained in para 13 in col 2 of Schedule 2 to the 1999 Regulations, which implemented the Directive. In any event, the necessary protection for the environment and the public interest was available in regulation 4(8) of the 1999 Regulations under which the secretary of state could direct that a development required an EIA before approval was granted. Members of the public were entitled to apply to the secretary of state for such a direction. An issue arose as to whether the 1999 Regulations had properly implemented the Directive.Held: The application was granted.It was appropriate to quash the planning permissions. By virtue of article 4 of the EIA Directive, projects that were likely to have a significant effect upon the environment were required to have an EIA prior to approval. Annex II to the Directive permitted member states to adopt a case-by-case approach or set a threshold for projects such as waste development. However, para 13 of Annex II provided that, where such projects had already been authorised, any change or extension that might have significant adverse effects upon the environment required a fresh consideration of the need for an EIA.Bearing in mind the purpose behind the Directive, it was plain beyond peradventure that it would be wrong to have regard only to the effect of the change rather than the cumulative effect upon the approved project as a whole: Abraham v Région Wallonne C-2/07 [2008] Env LR 32 and Ecologistas en Accion-CODA v Ayuntamiento de Madrid C-142/07 [2009] Env LR D4 considered. Therefore, col 2 in para 13 of Schedule 2 to the 1999 Regulations failed properly to implement the Directive since it sought to limit the application of the threshold to the further development rather than assess the cumulative effect of that development upon the project as a whole. It was clear, in the instant case, that no consideration had been given to the effect of the intensification of development upon the environment: Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut eV C-397/01 [2004] ECR I-8835 considered. Furthermore, it was plain from article 10a of the Directive that the secretary of state was obliged to make it clear to affected members of the public that they had a right to request the secretary of state to consider whether an EIA was appropriate before approval was granted for a development that was likely to have an adverse effect upon the environment. Any decision to grant planning permission had to await the outcome of the secretary of state’s decision as to whether an EIA was appropriate. The procedure set out in the 1999 Regulations did not comply with article 10a since there was no requirement or obligation to inform members of the public about their right to address the secretary of state: Berkeley v Secretary of State for the Environment, Transport and the Regions (No 3) [2001] EWCA Civ 1012; [2002] JPL 224 distinguished.Paul Stookes (solicitor advocate at Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; Richard Langham (instructed by the legal department of Bath and North East Somerset Council) appeared for the defendants; James Maurici (instructed by the Treasury Solicitor) appeared for the first interest party); the second interest party did not appear and was not represented.Eileen O’Grady, barrister