Development – Planning permission – Environmental impact assessment – Developer applying for permission to redevelop area in which claimant lived – Secretary of state making negative screening direction – Claimant applying for judicial review of direction – Whether secretary of state misdirecting himself on meaning of “significant effects on the environment” – Whether secretary of state giving defective reasons on possible effect of asbestos removal — Application dismissed
The second interested party developer applied for planning permission to redevelop a former bowls club to form 41 sheltered apartments for the elderly with car parking and other facilities, the first interested party council refused permission but the defendant secretary of state granted it on appeal. However, the inspector’s decision letter was subsequently quashed by consent because the defendant had failed to consider whether the proposal was a Schedule 2 application within the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (SI 1999/293), which required an environmental impact assessment (EIA) to be undertaken, before granting planning permission.
The defendant later made a negative screening direction determining that the proposed development did not require an EIA. The claimant, who lived and worked in the area, obtained permission to apply for judicial review of that screening direction on the grounds that: (i) the defendant had misdirected himself as to the meaning of “significant effects on the environment” in Article 2 of Council Directive 85/337/EEC (the EIA Directive) (on the assessment of the effects of certain public and private projects on the environment); and (ii) the defendant’s reasons for the screening direction were defective in respect of the possible effect of the removal of someasbestos and mitigation measures.
Held: The application was dismissed.
(1) The question of “significant effects on the environment” was a matter for judgment by a decision maker, which knew the local conditions and had the necessary expertise. It was reviewable on grounds of Wednesbury unreasonableness: R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2004] 2 P&CR 14 and R (on the application of Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140; [2003] 2 PLR 42 considered.
The claimant’s approach was erroneous in that it would transfer the focus from whether a project was likely to have significant effects on the environment to whether the effect should be considered and it might influence the decision. A range of matters might be relevant to the latter decision and might influence it notwithstanding that they could not have significant effects on the environment. Moreover, the claimant’s approach would have the effect of substituting a new and lower test for that set out in the EIA Directive and the 1999 Regulations. The EIA Directive was drafted so as to apply only where projects were likely to have significant effects on the environment. It was not intended that an EIA should be required in respect of development that might affect the environment. The fact that the EIA Directive had a wide scope and broad purpose did not mean that the test laid down in the Directive should be recast and the lesser test for which the claimant contended should be substituted.
It would not be appropriate for the court to lay down a single defined test of “significant effects on the environment” for application in all cases. Furthermore, the word “significant” should not be interpreted too rigidly in that context. The test of “significant effects on the environment” was intended to confer discretion on expert decision makers to take decisions on a case-by-case basis. There was no single, appropriate, hard-edged test that could apply in all cases.
(2) The reasons for a screening decision need not be elaborate, but they had to demonstrate that the issues had been understood and considered. They had to provide sufficient information to enable interested parties to understand the basis of the decision that an EIA was not required and to enable them to take steps to protect their rights under EU law. Furthermore, the reasons had to be read in the context of the correspondence in respect of the relevant issue.
Although the reasons given in the instant case were brief, they were sufficient considered in the context of the preceding correspondence and interpreted as they would be understood by a well-informed reader who was aware of the character of the development and the background of the proposals. The asbestos issue had been considered in correspondence and it had been concluded that relevant environmental standards would be adhered to with no significant effect. The regulatory regime was a matter of law and would, in any event, be well known to those interested parties and their advisors participating in the correspondence.
This was not a case in which the decision maker had been confronted with a novel situation or where there was anything about the mitigating features which rendered them unusual. The relevant environmental standards had been fully tested and tried and the likely effectiveness of the remedial measures could be predicted with confidence. In the context of a modest development, the reasons given were sufficient to explain why the decision maker had concluded that the removal of asbestos would not have significant effects on the environment. The response enabled the interested parties to understand the basis on which the competent authority had decided that an EIA was not necessary and to enable them to challenge the decision by legal proceedings if they considered it appropriate.
James Pereira (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; James Maurici (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
