R (on the application of Horner) v Lancashire County Council and another

Cement works – Development consent – Waste – Installation of machinery to handle animal waste-derived fuel – Local planning authority granting permission without environmental impact assessment (EIA) – Whether judge erring in law in upholding decision not to require EIA – Appeal dismissedThe appellant owned and ran two livestock farms that were close to a cement works that were owned and operated by the interested party. The interested party obtained planning permission from the respondent council to erect machinery to handle animal waste derived-fuel, comprising a tanker offloading area, a storage silo and an extraction system. The appellant was concerned about contamination of her pasture by airborne emissions of animal waste derivatives from the works, in particular, from accidents such as “blowouts” and the discharge of fuel into the silos. She applied for judicial review of the grant of planning permission on the basis that the respondent had failed to address or assess those risks. She contended that the respondents had erred in law in not requiring an environmental impact assessment (EIA) or undertaking a “screening” process to establish whether one was required, pursuant to the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (SI 1999/293), implementing EC Council Directive 85/337 (EIA Directive); and in not complying with their duties under the Waste Management Licensing Regulations 1994, in not taking account of the best practical environmental option policy (BPOE), derived from the National Waste Strategy 2000, which partially implemented EC Council Directive 75/442 (Waste Framework Directive).The Administrative Court dismissed the application on the basis that the proposed development was not “a development likely to have significant effects on the environment by virtue of factors such as its nature, size or location” as listed in Schedule 2 to the 1999 regulations. The judge held that the proposal, which he regarded as an “extension” rather than a “change” within Class 13(a) of Schedule 2, included floorspace that did not exceed the 1,000m2 threshold in Class 13(a) or met any specified criteria that were otherwise applicable. Furthermore, although the respondents had not expressly considered the BPEO, they had effectively done so by reference to the local waste plan and, in any event, full consideration of the BPEO could not have led to a refusal of permission. The appellant appealed. Held: The appeal was dismissed.The meaning of “floorspace” and its relevance as a planning criterion in Class 13(a) were matters of law, but their application to the facts of any case was one of fact and degree susceptible to challenge on conventional public law grounds. Given the wide variety of developments to which a Class 13(a) change or extension provision applied, whether they had “conventional” floorspace or not, the meaning of floorspace had to be interpreted as widely as possible to achieve the fundamental objective of the EIA Directive of protecting the environment from significant adverse effects: R (on the application of Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140; [2003] 3 PLR 42 considered. The “floorspace” threshold did not require any other EU sympathetic interpretation or application for it to be disregarded in individual cases where the threshold was not exceeded but some other unspecified criterion was sought to be applied. The judge’s application of the broader meaning to the measurable base or floor area of the silo was well within the range of reasonable decision open to him and was not irrational or otherwise unlawful. There was no basis for introducing a wider case-by-case approach than was already provided to meet any perceived inappropriateness or inadequacy of the Class 13(a) size threshold to the potential of the proposed development for environmental harm. Furthermore, a judge considering the lawfulness of a planning permission against the local authority’s balance of material planning considerations, was entitled to form a view as to whether, in the circumstances, the omission or inadequate consideration of the BPEO would have made any difference to the outcome. A conclusion that it would not, as in the present case, was relevant to the decision whether the planning permission was legally valid: R (on the application of Blewett) v Derbyshire Waste Ltd [2004] EWCA Civ 1508; [2005] 1 PLR 54 and Berkeley v Secretary of State for the Environment [2001] EWCA Civ 1012; [2002] 1 P&CR 21 considered. Stephen Tromans and Justine Thornton (instructed by Forbes, of Blackburn) appeared for the appellant; Frances Patterson QC and Sarah Reid (instructed by the legal department of Lancashire County Council) appeared for the respondents; James Findlay (instructed by Taylor Wessing LLP) appeared for the interested party, Castle Cement.Eileen O’Grady, barrister