Town and country planning – Environment – EIA Directive – Respondents granting planning permission for link road to form part of bypass – Appellant challenging grant of permission – Development plan contemplating residential development alongside link road – Link road to be funded in part by developer of residential site – Whether link road and residential development together forming a single “project” for purposes of EIA Directive – Whether cumulative impacts sufficiently considered – Appeal dismissed
In 2013, the respondent council received an application from the interested party, as the relevant highways authority, for planning permission for the construction of a major link road to form part of a bypass to the south of Grantham, with the aim of alleviating traffic congestion caused by traffic passing through the town centre to transfer between the A1 and A52. Planning permission for the section running from the A1 to the B1174 had been granted in 2010. The application submitted in 2013 related to the section linking the B1174 and A52.
It was anticipated that the link road would be funded in part by a developer which proposed a large residential and community development of up to 4,000 homes on a site to the south of Grantham. Guidance on the development of the residential site was set out in a masterplan drawn up pursuant to the core strategy for the area. The core strategy made access to the residential site dependent on the provision of the link road. The design of the link road included a roundabout with an additional stub of road which could, in time, be extended into a spine road serving the residential development.
An environmental statement submitted by the interested party, pursuant to Directive 2011/92/EU (the EIA Directive) and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations), treated the link road as the relevant “project” for the purposes of the directive, while recognising that the link road might have cumulative environmental effects in combination with the development of the residential site. In November 2013, the respondents granted planning permission for the link road. A planning application was later submitted for the residential development.
The appellant applied for judicial review of the planning permission for the link road, contending that: (i) the link road and the residential development were so inter-connected as to form a single “project” for the purposes of the EIA Directive; alternatively (ii) even if the link road was a separate project, the environmental statement failed adequately to address its cumulative effects in combination with the residential development. Those arguments were rejected in the court below: see [2014] EWHC 3760 (Admin). The appellant appealed.
Held: The appeal was dismissed.
Just because two sets of proposed works might have a cumulative effect on the environment, that did not make them a single “project” for the purposes of the directive. The directive contemplated that they might constitute two different “projects” but with cumulative effects which needed to be assessed through EIA scrutiny. A planning authority should be astute to ensure that a developer had not sliced up what was, in reality, one project in order to try to make it easier to obtain planning permission for the first part of the project and thereby gain a foot in the door in relation to the remainder: Ecologistas en Acción-CODA v Ayuntamiento de Madrid Case C-142/07 [2009] ECR I-6097 applied. However, it was nonetheless legitimate for different development proposals to be brought forward at different times, even though they might have a degree of interaction, if they were properly characterised as different “projects”.
The EIA Directive was intended to operate in a way which ensured that there was appropriate EIA scrutiny to protect the environment while avoiding undue delay in the operation of the planning control system, which would be likely to follow if all the environmental effects of every related set of works had to be definitively examined before any of those sets of works could be allowed to proceed. Where two or more proposed linked sets of works were in contemplation, which were properly to be regarded as distinct “projects”, the objective of environmental protection was sufficiently secured by consideration of their cumulative effects, so far as that was reasonably possible, in the EIA scrutiny applicable when permission was sought for the first project, combined with the requirement for subsequent EIA scrutiny for the second and each subsequent project. That was what had happened in the instant case regarding the application for permission to build the link road and the later application to develop the residential site.
The link road was properly characterised as a “project” for EIA purposes which was distinct from the proposed development of the residential site: Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 considered. The most important feature was the existence of a strong planning imperative for the construction of the link road as part of the Grantham bypass, which had nothing to do with the development of the residential site. While planning permission could not be granted for the residential site unless the link road was constructed, the converse was not true. There was a strong independent planning need for the construction of the link road whether or not the residential site was developed. The relevant project was the “construction of a road”, within section 10 of Annex II to the EIA Directive.
The functional and design connections between the link road and the residential site did not detract from that conclusion. It was simple planning good sense that the link road should skirt the residential site, so as to avoid jeopardising the separate planning objective of using that site for residential development, and for the link road to include the roundabout and road stub, to avoid extra costs which were foreseeable if the residential site was developed in accordance with the local plan documents. Those adjustments did not demonstrate such inter-connectedness between the link road and the development of the residential site that they should be regarded as all part of one combined “project”.
Likewise, the fact that funding for the construction of the link road would depend to a significant degree on future contributions from the developer of the residential site did not lead to the conclusion that the two developments had to be regarded as part of a single “project”. The funding arrangements were contingent matters which did not bear on the planning merits of the proposal to construct the link road to complete the Grantham bypass. It was legitimate for a planning authority to grant planning permission for a development where there remained doubt whether the development would be funded, which was often a contingent and uncertain matter. The planning authority was concerned with the planning merits of the application.
(2) The environmental statement which the interested party had submitted with their planning application contained sufficient information on the cumulative effects of the link road and residential development. The interested party had supplied as much information as they reasonably could about the cumulative effects, taking account of the degree of uncertainty which existed about the precise details of development of the residential site in accordance with the masterplan. Uncertainty in relation to a later proposed project affected what cumulative effects could be said to be likely at the time when the application for the earlier development was being considered. The greater the uncertainty, the less precise the details which could be given about the likely cumulative impacts. While the masterplan did not specify exactly where particular buildings would go and left a large margin of uncertainty, it did give a reasonably good idea of where green areas would be left to minimise the environmental impacts from the residential development and the environmental statement reflected that information. It gave the appropriate data to the level which the interested party could reasonably be required to compile, having regard to current knowledge. Overall, it gave a fair and adequate account of what the cumulative impacts were likely to be.
Martin Kingston QC and Charles Banner (instructed by Shakespeare Martineau LLP, of Leicester) appeared for the appellant; Richard Langham (instructed by the legal department of South Kesteven District Council) appeared for the respondents; John Hobson QC (instructed by the legal department of Lincolnshire District Council) appeared for the interested party.
Sally Dobson, barrister
Click here to read transcript: R (on the application of Larkfleet Ltd) v South Kesteven District Council
