Town and country planning – Environmental impact assessment – Cumulative impacts – Planning permission granted for development of seafront site – Earlier screening direction issued by first respondent indicating that no EIA needed – Whether first respondent wrongly finding that that development not likely to have significant environmental effects when considered cumulatively with another nearby development proposal – Appeal dismissed
In June 2013, the first respondent granted planning permission to the third respondent, on the recommendation of a planning inspector, for the development of a seafront site in Margate by the refurbishment of an existing building and the construction of a Tesco superstore, 60-bed hotel and associated cark parking. The site adjoined a beach which was the subject of various protective designations, owing to its environmental importance as a habitat for wintering and breeding birds. In an earlier screening direction, the first respondent had concluded that no environmental impact assessment (EIA) was required for the development under the Town and County Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, implementing Directive 85/337/EEC, since it was not likely to give rise to any significant environmental effects, either individually or cumulatively with other proposed development.
The appellant, a local resident and businesswoman, sought judicial review of the screening opinion and also brought a challenge under section 288 of the Town and Country Planning Act 1990 to the grant of planning permission. Her primary contended was that the first respondent had failed properly to consider the cumulative effects of the proposed development when combined with the planned redevelopment of an amusement park on an adjacent seafront site. That site and the third respondent’s site were each the subject of earlier planning briefs approved by the local planning authority with a view to regeneration of the area. The appellant contended that, if the cumulative effects of the two developments had been properly considered, the secretary of state might have concluded that an EIA was necessary.
The claim was dismissed on the ground that, while the environmental effects of the development had to be considered cumulatively with the proposed development of the amusement park, the first respondent had been entitled to find that there were no significant cumulative effects; the first respondent could validly conclude that any significant environmental effects would be the free-standing consequences of the amusement park project and thus did not have to be considered as part of the cumulative consequences of the third respondent’s development. The appellant appealed.
Held: The appeal was dismissed.
Any assessment of environmental effects had to be made in the light of what was known, and what was reasonably predicable on or ascertainable at, the time of the assessment. Although the amusement park site was earmarked for development, its future remained uncertain and no planning application was yet forthcoming. In those circumstances, the first respondent could validly conclude that there were, at that point, no cumulative significant environmental effects. That did not mean that, as the development of the amusement park site gathered pace, there might not be significant cumulative effects on the environment resulting from the development of that site when considered with the now-permitted development of the third respondent’s site. However, the inspector and the first respondent were in no position to assess that matter when considering the development of the third respondent’s site in 2012 and 2013, since the position in relation to the amusement park site was too uncertain.
There was no substance in a further allegation by the appellant that there had been impermissible “project-splitting” with important matters, in particular the potential environmental effects of foul and surface drainage from the site, being left up in the air at the time of the screening decision to be dealt with at a later stage. Decision-makers had to be alert to ensure that developments did not circumvent the EIA mechanism by “salami-slicing” their proposal into sub-projects, each of which fell below the screening thresholds or criteria. However, the planning history of the third respondent’s development refuted any allegation of project-splitting. Foul and surface water disposal had been properly considered at every stage and, by dealing with that matter by way of a condition, the first respondent was not hiving off an important issue but was instead addressing it by permissible means.
Jenny Wigley (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Rupert Warren QC (instructed by the Treasury Solicitor) appeared for the first respondent; Neil King QC and Richard Moules (instructed by Osborne Clarke) appeared for the third respondent developer; the local planning authority, Thanet District Council, did not appear and were not represented.
Sally Dobson, barrister
