Town and country planning – Environment – Screening direction – Appellant resident opposing proposal for housing development and requesting environmental impact assessment (EIA) screening direction – First respondent secretary of state concluding that development not EIA development – High Court refusing application for judicial review –Appellant appealing – Whether conclusion that development not likely to have significant effect on environment irrational – Appeal dismissed
The appellant was a local resident, concerned by an application to the second respondent local authority for outline planning permission for a development of 150 homes on a brownfield site at the disused Hemsworth Sports Complex, Hemsworth, Pontefract, West Yorkshire, because of its potential environmental impacts. In particular, residents were likely to use cars, which would increase air pollution levels locally. Furthermore, the land was partially contaminated because a former brickworks quarry (site A) had been used for landfill, and other purposes.
In 2016, the appellant requested an environmental impact assessment (EIA) screening direction. The first respondent secretary of state directed that the proposed development was not EIA development within the meaning of regulation 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 because it was not likely to have significant effects on the environment. Accordingly, an environmental statement to assess the environmental effects of the development was not required. The appellant’s application for judicial review of the screening direction was dismissed.
The appellant appealed contending that: (i) there was insufficient evidence for the finding that the proposed development would have no likely significant effects on the environment; (ii) the judge had failed to acknowledge that a precautionary approach to EIA decision-making was required where it was accepted that the proposal would lead to an increase in traffic and air pollution within the nearby Air Quality Management Area (AQMA); (iii) the judge had erred in concluding that the first respondent had considered cumulative effects when he had failed to provide any material evidence; (iv) the judge had failed to have regard to the fact that the first respondent relied upon the proposal being in an urban area; and (v) the judge had erred in regarding site A as an existing development site.
Held: The appeal was dismissed.
(1) The first and second respondents, as experienced and knowledgeable planning officials, were well aware of the likely impact of the traffic from site A on the AQMA. In the exercise of their planning judgment, they concluded that that was not likely to have a significant effect on the environment. That was a matter for them. The first and second respondents were not required to set out in detail all the information and statistics which might be relevant to the question of air pollution; in particular the published data as to trip frequency, standard emissions and exceedances, and the like. The first and second respondents had to be taken to be familiar with all such information. Armed with that knowledge, the conclusion that the increase in traffic was not likely to have a significant effect on the environment because of the comparatively modest scale of the development, was for them to decide; it did not have to be justified by reference to lengthy written reasons in respect of concepts, formulae and other matters. It was beyond argument that the first and second respondents reached their conclusions, taking into account all relevant considerations, including the nature, location, and scale of the proposed development and the other developments in the area (both planned and actual), such that an EIA was not required. There was a plain evidential basis for that conclusion which was a matter of planning judgment: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58; R (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869; [2012] PLSCS 147; R (on the application of Champion) v North Norfolk District Council [2015] UKSC 52; [2015] EGLR 59; R (on the application of Hockley) v Essex County Council [2013] EWHC 4051 (Admin): and Mackman v Secretary of State for Communities and Local Government and others ([2015] EWCA Civ 716; [2015] PLSCS 214 considered.
(2) The precautionary principle only applied if there was a reasonable doubt in the mind of the primary decision-maker. In the present case, neither the first nor the second respondent had any doubt that the proposed development was not likely to lead to significant effects. In circumstances where there was no doubt in the mind of the relevant decision-maker, there was no room for the precautionary principle to operate: R (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 115 applied.
(3) Nowhere in the screening direction, or in any other documents, was there any sustainable suggestion that, in some way, the potential air pollution from the completed development of site A was treated in a different way because it would occur in an urban environment, as opposed to a rural location. The screening direction was making plain that the pre-existing urban environment was part of the context in which the development was to take place, and was therefore a relevant factor to be taken into account when considering whether the effect was likely to be significant or not. That was self-evidently the right approach. It was in that context that the likelihood of significant environmental effects was considered and rejected.
(4) It was contrary to common sense to suggest that site A should somehow be designated or treated in the same way as a greenfield site. It was formerly a brickworks quarry which was subsequently used for landfill with no restoration procedures. Site A fell within the NPPF 2012 definition of previously developed land (PDL). Since none of the exclusions from the definition of PDL could apply to site A, it was rightly considered to be an existing developed site. Further, the description of site A as “an existing developed site” had no impact on the first respondent’s screening direction or the judge’s judgment. The screening direction would have been the same, whether site A was so designated or not as it was still the same distance away from the AQMA. It was still not in the open countryside away from all forms of traffic. Accordingly, its designation was irrelevant to the screening direction.
Marc Willers QC and Paul Stookes (instructed by Richard Buxton Solicitors) appeared for the appellant; Carine Patry (instructed by the Government Legal Department) appeared for the first respondent; the other respondents did not appear and were not represented.
Eileen O’Grady, barrister
