R (on the application of Burridge) v Breckland District Council
Pill and Davis LJJ and Warren J
Planning applications – Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 – Proposal to construct biomass renewable energy plant fuelling combined heat and power plant – Respondent council issuing screening opinion that no EIA required – Application later split into two when CHP plant relocated to separate site – Whether further screening opinion required – Appeal dismissed
The interested party applied to the respondent council for planning permission to construct a biomass renewable energy plant and a combined heat and power (CHP) plant. The renewable energy plant was to produce “biogas” to fuel the CHP plant, which would convert it into heat and electricity to supply the National Grid. The development was of a type falling within para 3(a) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, implementing Council Directive 85/337 (the EIA Directive). In a screening opinion issued pursuant to the regulations, the respondents indicated that the development was not likely to have significant effects on the environment and that no environmental impact assessment (EIA) was required.
The interested party later decided to relocate the CHP plant to a separate site. It amended its original planning application accordingly and submitted a second application for the CHP site and for an underground gas pipeline running from one site to the other. The respondents did not issue new screening opinions in respect of the revised proposals. They resolved to grant planning permission on both applications.
The appellant applied for judicial review of the planning permissions, contending that the respondents should have issued new screening opinions that considered the combined effects of the two applications. Dismissing the claim in the court below, the judge found that the two developments, although functionally inter-dependent, were not part of the same substantial development. He held that the need for a screening opinion was not engaged in relation to the CHP site since it did not reach the size threshold under Schedule 2. As to the renewable energy plant site, he held that a sufficient screening opinion had been issued when the two parts of the project were on the same site and that their separation for the purposes of the amended application did not require a further screening opinion: see [2012] EWHC 1102 (Admin); [2012] PLSCS 90. He further held that, in any event, a combined consideration of the two applications would not have led to a different screening opinion from that reached on the original.
The appellant appealed. She contended that the respondents had been obliged, when considering an application that was before them within the meaning of regulation 7(1)(a), to consider the wider effects of the whole “project” for the purposes of the EIA Directive, including the development on both sites. Opposing that submission, the respondents contended that regulation 7(1)(a), so far as it referred to “an application”, required the respondents to consider separately the effects of each application that was before them.
Held: The appeal was dismissed.
(1) The screening opinion was a discrete and important part of the planning procedure adopted under the EIA Directive. It could not be overlooked and it might require more than one planning application to be considered as part of a relevant project: R (on the application of Mellor) v Secretary of State for Communities and Local Government C-75/08 [2010] PTSR 880; [2009] 18 EG 84 (CS) and R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 considered. The obligations under the directive and the regulations could not be circumvented by the splitting of projects or the failure to take account of the cumulative effects of several projects. Considered with the word “project” in the directive, the expression “an” application in regulation 7(1)(a) did not require or permit the two applications before the respondents to be considered separately. Those two applications together formed a single project and comprised “the development in question” for the purposes of regulation 7(1)(b). They were linked in that they were functionally inter-dependent and one could not sensibly be implemented without the other. Albeit in two applications, there was a single project and a single development, which, treated as a whole, crossed the Schedule 2 threshold. The two applications were properly to be regarded as part of the same substantial development and it was necessary to take both into account together when deciding whether a screening opinion was necessary: R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1991] 1 PLR 6 and R (on the application of Candlish) v Hastings Borough Council [2005] EWHC 1539 (Admin); [2006] Env LR 13; [2005] 4 PLR 60 distinguished.
(2) (Pill LJ dissenting): The planning permissions should none the less be upheld on the ground that the respondents had in fact undertaken an informal screening assessment of both applications together. In that regard, the judge had been entitled to accept a statement from the respondents’ planning officer as to his view, reached at the time when the two applications were considered, that the splitting of the two parts of the development could and would not have resulted in a different EIA outcome. There was no reason to interfere with the judge’s findings on that matter.
(3) The members of the court differed as to the nature of the required further screening opinion. Pill LJ took the view that the screening opinion had to be expressed formally. Davis LJ considered that the 1999 Regulations did not require a further reasoned written screening opinion to explain the respondents’ view that an EIA was not called for; it was sufficient that the respondents had in fact addressed the issue. Warren J held that the 1999 Regulations did require a further written statement to the effect that the development was or was not EIA development and that the respondents had failed to comply with those requirements; however, he considered that, in the exceptional circumstances of the case, the failure to comply with the strict requirements of the regulations should not result in the invalidity of the planning permissions, given that a full screening opinion had been issued in relation to the original application and there had been a further effective screening opinion in relation to the revised proposals, albeit not reduced into writing.
Justine Thornton and Zack Simons (instructed by Richard Buxton, of Cambridge) appeared for the appellant; John Hobson QC and Ned Helme (instructed by the legal department of Breckland District Council) appeared for the respondents; Alex Goodman (instructed by Metcalfe Copeman & Pettefar, of Thetford) appeared for the interested party.
Sally Dobson, barrister
Planning applications – Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 – Proposal to construct biomass renewable energy plant fuelling combined heat and power plant – Respondent council issuing screening opinion that no EIA required – Application later split into two when CHP plant relocated to separate site – Whether further screening opinion required – Appeal dismissedThe interested party applied to the respondent council for planning permission to construct a biomass renewable energy plant and a combined heat and power (CHP) plant. The renewable energy plant was to produce “biogas” to fuel the CHP plant, which would convert it into heat and electricity to supply the National Grid. The development was of a type falling within para 3(a) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, implementing Council Directive 85/337 (the EIA Directive). In a screening opinion issued pursuant to the regulations, the respondents indicated that the development was not likely to have significant effects on the environment and that no environmental impact assessment (EIA) was required.The interested party later decided to relocate the CHP plant to a separate site. It amended its original planning application accordingly and submitted a second application for the CHP site and for an underground gas pipeline running from one site to the other. The respondents did not issue new screening opinions in respect of the revised proposals. They resolved to grant planning permission on both applications.The appellant applied for judicial review of the planning permissions, contending that the respondents should have issued new screening opinions that considered the combined effects of the two applications. Dismissing the claim in the court below, the judge found that the two developments, although functionally inter-dependent, were not part of the same substantial development. He held that the need for a screening opinion was not engaged in relation to the CHP site since it did not reach the size threshold under Schedule 2. As to the renewable energy plant site, he held that a sufficient screening opinion had been issued when the two parts of the project were on the same site and that their separation for the purposes of the amended application did not require a further screening opinion: see [2012] EWHC 1102 (Admin); [2012] PLSCS 90. He further held that, in any event, a combined consideration of the two applications would not have led to a different screening opinion from that reached on the original.The appellant appealed. She contended that the respondents had been obliged, when considering an application that was before them within the meaning of regulation 7(1)(a), to consider the wider effects of the whole “project” for the purposes of the EIA Directive, including the development on both sites. Opposing that submission, the respondents contended that regulation 7(1)(a), so far as it referred to “an application”, required the respondents to consider separately the effects of each application that was before them.Held: The appeal was dismissed. (1) The screening opinion was a discrete and important part of the planning procedure adopted under the EIA Directive. It could not be overlooked and it might require more than one planning application to be considered as part of a relevant project: R (on the application of Mellor) v Secretary of State for Communities and Local Government C-75/08 [2010] PTSR 880; [2009] 18 EG 84 (CS) and R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 considered. The obligations under the directive and the regulations could not be circumvented by the splitting of projects or the failure to take account of the cumulative effects of several projects. Considered with the word “project” in the directive, the expression “an” application in regulation 7(1)(a) did not require or permit the two applications before the respondents to be considered separately. Those two applications together formed a single project and comprised “the development in question” for the purposes of regulation 7(1)(b). They were linked in that they were functionally inter-dependent and one could not sensibly be implemented without the other. Albeit in two applications, there was a single project and a single development, which, treated as a whole, crossed the Schedule 2 threshold. The two applications were properly to be regarded as part of the same substantial development and it was necessary to take both into account together when deciding whether a screening opinion was necessary: R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1991] 1 PLR 6 and R (on the application of Candlish) v Hastings Borough Council [2005] EWHC 1539 (Admin); [2006] Env LR 13; [2005] 4 PLR 60 distinguished. (2) (Pill LJ dissenting): The planning permissions should none the less be upheld on the ground that the respondents had in fact undertaken an informal screening assessment of both applications together. In that regard, the judge had been entitled to accept a statement from the respondents’ planning officer as to his view, reached at the time when the two applications were considered, that the splitting of the two parts of the development could and would not have resulted in a different EIA outcome. There was no reason to interfere with the judge’s findings on that matter.(3) The members of the court differed as to the nature of the required further screening opinion. Pill LJ took the view that the screening opinion had to be expressed formally. Davis LJ considered that the 1999 Regulations did not require a further reasoned written screening opinion to explain the respondents’ view that an EIA was not called for; it was sufficient that the respondents had in fact addressed the issue. Warren J held that the 1999 Regulations did require a further written statement to the effect that the development was or was not EIA development and that the respondents had failed to comply with those requirements; however, he considered that, in the exceptional circumstances of the case, the failure to comply with the strict requirements of the regulations should not result in the invalidity of the planning permissions, given that a full screening opinion had been issued in relation to the original application and there had been a further effective screening opinion in relation to the revised proposals, albeit not reduced into writing.Justine Thornton and Zack Simons (instructed by Richard Buxton, of Cambridge) appeared for the appellant; John Hobson QC and Ned Helme (instructed by the legal department of Breckland District Council) appeared for the respondents; Alex Goodman (instructed by Metcalfe Copeman & Pettefar, of Thetford) appeared for the interested party.
Sally Dobson, barrister
