Planning permission – Environment – Conditions – First appellant council deciding proposed development not requiring environmental impact assessment or appropriate assessment under relevant environmental regulations – First appellants deciding to grant planning permission subject to conditions relating to monitoring of water quality to prevent harm to nearby river designated as site of special scientific interest and special area of conservation – Permission quashed on ground that those two decisions inconsistent such as to give rise to irrationality – Appeal allowed
In September 2013, the first appellant council granted planning permission to the second appellant company for development at its plant in Norfolk by the erection of two silos and the construction of a lorry park with wash bay and ancillary facilities, associated surface water balancing pond, access and landscaping. The development site was close to the River Wensum, which was designated as a site of special scientific interest (SSSI) and special area of conservation (SAC). The first appellants decided that the development was not such as to require either an environmental impact assessment (EIA) under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, implementing Council Directive 85/337/EEC (the EIA Directive), or an appropriate assessment under the Conservation of Habitats and Species Regulations 2010, implementing Council Directive 92/43/EEC (the Habitats Directive). However, it also decided that the planning permission should be subject to conditions requiring the water quality in the drainage network between the development site and the river to be monitored and, if necessary, restored so as to prevent harm to the SSSI and the SAC.
In judicial review proceedings brought by the respondent, the deputy judge held that the first appellants could not rationally adopt both those positions at once. He held that the first appellants’ decision in relation to environmental assessment suggested that they had concluded that there was no relevant risk of pollutants from the plant entering the river, while their decision in relation to planning conditions suggested that they thought there was such a risk. He quashed their decision accordingly.
The appellants appealed. They contended that the deputy judge had erred in conflating the distinct legal tests involved in determining whether: (i) an EIA was required, (b) an appropriate assessment was required; and (iii) water quality monitoring conditions were appropriate. They submitted that the first appellants could rationally conclude that both that an EIA and an appropriate assessment were not required and that the planning permission should be subject to conditions of the kind they imposed.
Held: The appeal was allowed.
(1) There was no inconsistency between the two positions adopted by the first appellants. They were sequential and separate aspects of the first appellants’ decision-making process and reasoning. The decision that an EIA and an appropriate assessment were not required came first and were the subject of a vote in which the first appellants concluded that the development was not likely to have significant effects on the SSSI or the SAC. Unless they had accepted that view, the substantive debate on whether to approve the application for permission could not have proceeded. The inclusion of conditions relating to the monitoring of water quality came at a later point and had been agreed in order to provide reassurance on that issue. There is nothing to suggest that the inclusion of the additional conditions was suggested or agreed to because there was considered to be a likelihood that the development would give rise to a diminution in the water quality in the drainage network, let alone a likelihood of the water quality diminishing to such an extent that it could have a significant adverse impact on the SSSI or the SAC.
The inconsistency that the deputy judge perceived in the first appellants’ approach stemmed from his view that conditions could be imposed only where the first appellants considered them to be necessary, such that the appellants could not lawfully impose conditions relating to the monitoring of water quality unless they considered that there was a risk, amounting to a likelihood for the purposes of the regulations and directives, that pollutants could enter the river. However, that conditions should not be imposed unless they were necessary was, strictly speaking, a policy requirement rather than a statutory precondition to their validity. In any event, the first appellants could properly consider that the conditions were necessary as a precautionary measure for the purposes of reassurance, without considering that, in their absence, there was a likelihood that pollutants would enter the river. The conditions simply provided for the water quality to be assessed and, in the event that a diminution in quality was detected, for steps to be taken to prevent it from diminishing to such an extent that it could have a significant impact on the SSSI and SAC. There was nothing in the wording to suggest a likelihood of the water quality diminishing, let alone of it diminishing to such an extent that it could have a significant impact on the SSSI and SAC. A condition could, in principle, be imposed to address a situation falling short of one that was considered to involve a likelihood of significant adverse effects: Feeney v Secretary of State for Transport [2013] EWHC 1238 (Admin) applied. Accordingly, the basis on which the deputy judge decided to quash the planning permission could not stand and his order would be set aside accordingly.
Christopher Lockhart-Mummery QC (instructed by Howes Percival, of Norwich) appeared for the appellants; Richard Harwood QC (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondent.
Sally Dobson, barrister