Assessment - Don t let the tail wag the dog. Richard Kimblin No. 5 Chambers 1

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1 Assessment - Don t let the tail wag the dog Richard Kimblin No. 5 Chambers 1...the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle-race. 2 Principles 1. We could spend a week looking at the decided cases but that would be a distraction from the day job. We could spend the day on the recent cases, but you might go from here just knowing the names of some cases. Looking at some principles might lead to a more practical outcome. Hence, these notes address some key principles then provide something of an update on recent activity. 2. The themes of the leading European and domestic cases have centred around: (i) (ii) (iii) (iv) (v) (vi) the mode of interpretation, construction, approach and objectives of the Directive; screening issues the approach to be taken to deciding whether an EIA should be undertaken; fitting the EIA procedure into the domestic application process; challenging the content of the EIA; understanding whether a particular change to built development or a use is a modification which requires EIA; salami. 1 rk@no5.com 2 Per Carnwath LJ in Jones v Mansfield DC [2004] Env LR 21 1

2 3. The legal landmarks which serve to tell the main chapters in the above stories are: Dutch Dykes Kraaijveld v. Gedeputeerde Staten Van Zuid-Holland (case C-72/95) [1997] Env LR 3, 265 Town and Country Planning (Assessment of Environmental Effects) Regulations 1999 WWF v. Bozen (case C-435/97) [2000] 1 CM LR149 Rochdale MBC ex parte Tew [2000] Env LR 1 Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 3, 406. Berkeley v. Secretary of State for Environment, Transport and the Regions [2001] Env LR 16 R (oao) Blewett [2004] Env LR 29 (High Court) Barker v. Bromley LBC [2007] 1 AC 470 Town and Country Planning (Assessment of Environmental Effects) Regulations 2007 Environmental Assessment Regulations Interpretation and Approach 4. No practical question as to the requirements for and approach to Environmental Assessment can be made without having certain principles in mind. We attempt to identify and state them briefly here: (i) (ii) (iii) The wording of the Directive indicates that it has a wide scope and a broad purpose (Dutch Dykes, para 31 and 39). The underlying objective of the Directive is to ensure that projects which are likely to have significant effects on the environment should be granted development consent only after prior assessment of the likely significant effects has been carried out (Tew at page 26). The Environmental Statement does not stand alone. Representations made by consultees are an important part of the environmental information which must be considered by the local planning authority before granting planning permission (Tew at page 29). 2

3 (iv) (v) (vi) (vii) A decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it, to a later stage would conflict with the public s right to make an input into the environmental information and would conflict with the underlying purpose of the Directive (Tew, at page 29). Member states may choose either to set thresholds and criteria for deciding whether a specific project needs to be assessed or may use a case by case approach but in either case no project likely to have significant effects on the environment should be exempt from assessment. If it were otherwise, the objective of the Directive would be undermined (Bozen at para 45). It is for the domestic courts of each member state to decide in any particular case whether the decision to require an assessment or not was correctly made (Bozen at para 48). The EIA procedure must be used, not an alternative procedure because to do so would undermine the objective of the Directive. Screening 5. Does the description of this particular development fit within the meaning of Schedule 2 to the Regulations? This is a key question because that decision determines whether the expense and delay of producing an EIA is to be borne or not. 6. It was clear as early as 1997 (Dutch Dykes) that a restrictive interpretation of Schedule 2 descriptions would not be tolerated. The term canalisation and flood relief works had to be interpreted to include certain types of work on a dyke running alongside a waterway. This also included not only new dykes but modification of such dykes. The reasoning for this approach is that the Directive has a wide scope and broad purpose. 7. This approach was further strengthened in Bozen. It is not permissible to exclude whole categories of development. 3

4 8. Post-Mellor, the 2011 Regulations include a requirement to give reasons for a negative screening opinion. There is presently something of a rash of domestic cases which seek to attack screening opinions 3. FITTING EIA INTO THE APPLICATION PROCESS 9. Rochdale and Bromley are the foci of this practically very important part of the EIA story. 10. Via Tew and Milne it was established that: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) The description of development must be sufficiently precise to allow the assessment of the significant environmental effects. An environmental assessment must sufficiently describe the proposed mitigation measures, rather than allowing them to come forward in piecemeal fashion, at different times, and thus frustrating the objectives of the Directive. A bare outline application cannot easily be used as a basis upon which to assess environmental effects. Where only a few minor matters are reserved for subsequent determination, it may be possible to use the outline procedure. In any event, it is necessary to ensure that such description as is used for the assessment of environmental effects (eg, a masterplan), is carefully fixed by means of condition. The objective of the Directive was that the likely significant effects of such projects should be comprehensively assessed before development consent is granted and not to frustrate the carrying out of important projects. The Directive sought that as much knowledge as possible was available to the decision maker, as early as possible. It is possible to deal with an evolving project via the EIA procedure, providing that the future development of the project is appropriately fixed and constrained by the planning authority by use of conditions. 3 See, for example: Dry, Wye Valley, Bateman, Loader, U Partners (East Anglia) Limited, Warley. 4

5 11. Turning now from Rochdale and Bromley to the case of Barker, this case again required examination of the relationship between outline and reserved matters stages. After a reference to the ECJ, the House of Lords modified the law as expressed in Tew so far as the power to require environmental information at reserved matters stage is concerned. The upshot of Barker was to demonstrate that the EIA Regulations 1988 contained a lacuna which had to be addressed. The judgment of the ECJ was put into effect, namely that if in the case of a two stage consent process it becomes apparent at the second stage that a project is likely to have significant effects on the environment, then an EIA is required. Hence, if at reserved matters stage it becomes apparent that there are significant environmental effects, or there are likely to be, then a positive screening opinion is required. 12. The amendment to the EIA Regulations in 2007 were not particularly happy amendments. They have been simplified in the 2011 Regulations. MODIFICATION 13. Modification to an existing development has caused problems from the outset 4. From quite early on, it was plain that EIA was required for modification of an existing development, if such modification was likely to have significant effects on the environment (see Dutch Dykes). Such is the case even when a development does not fit within a description within Annexe The 2011 Regulations take account of the case of Baker 6 which deals with the question of how to assess a modification or change to a use. Does one assess the modification, or the impact of the whole installation, including the proposed modification? The answer to that question is that one does not assess the modification in isolation. The 2011 Regulations take account of this change and correct the 1999 Regulations. 4 See Commission v. Germany (Case C ) 5 This is an approach to interpreting the screening requirements which has not yet been fully pursued domestically. 6 R (oao) Baker v Bath and North East Somerset Council [2009] EWHC

6 WHAT SHOULD BE IN AN ENVIRONMENTAL STATEMENT? 15. Berkeley makes it clear that the ES is the cornerstone of the regime. The requirement of the Directive is that the public be given an opportunity to express an opinion. That purpose and objective is frustrated if the environmental information from the Environmental Impact Assessment is not collated in a systematic manner. Hence, an ES is to be a single accessible compilation of the relevant information, including a non-technical summary, produced by the developer at the very start of the application process. 16. However, it is to be emphasised that the production of an ES is pursuant to the scoping stage and is not intended to be a document which includes every scrap of information, as explained in Blewett: In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant s environmental statement will always contain the full information about the environmental impact of a project. The regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting environmental information provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined in the Regulations (Tew was an example of such a case), but they are likely to be few and far between. It would be of no advantage to anyone concerned with the development process applicants, objectors or local authorities if environmental statements were drafted on a purely defensive basis, mentioning every possible scrap of environmental information just in case someone might consider it significant at a later stage. Such documents would be a hindrance, not an aid to sound decision making by the local planning authority, since they would obscure the principal issues within a welter of detail. 6

7 SOME EXAMPLES OF RECENT ACTIVITY Save Historic Newmarket Limited 17. The question of alternatives in an Environmental Assessment has not, to date, been a very productive one, in the case law. The EIA Directive does not require a developer to undertake an assessment of alternatives considered in his site selection process. It is only in the event that alternatives are in fact considered that some assessment must be made. In other words, if a developer does not want to consider alternatives, there is no requirement to do so. In respect of Strategic Environmental Assessment (SEA), the situation is different and has resulted in the quashing of a policy in a core strategy. In Save Historic Newmarket Limited v. SSCLG [2011] EWHC 606, the Court quashed a policy in the Core Strategy of Forest Heath District Council. Newmarket is a principal town within the council s district and was to be one of the focal points for housing development in the district. The council commenced the process of developing its Core Strategy. Between March and July 2005 the council prepared an Issues and Options paper, together with an SA. The question posed in the Issues and Options paper was Where new development should go?. The key question was whether most of the new development should go to Newmarket or whether it should be spread more widely. 18. Following consideration of the responses to the paper, preferred options were published in August and September The SA for the 2006 document included a table showing the allocation of houses to particular areas. It showed Newmarket s allocation to be 500 altogether of which 400 were to be on land east of Fordham Road at Hatchfield Farm. 19. In July and August 2008 the council produced its final policy options and a further accompanying SA. Option CS2 provided that Green Field land would be allocated as an overextension to the northwest (sic) of Newmarket for approximately 1000 dwellings as part of a mixed use development to be built between 2010 and Apart from the unfortunate error of putting the development in the wrong quadrant of Newmarket, the whole of CS2 was entirely new and had not been subject to consultation. The increase from 500 to 1000 dwellings was obviously immaterial, as was the fact that the 7

8 rate at which they were proposed to be built out had increased because they were to be built over a ten year period instead of a fifteen year period. 21. The challenge to the process was successful because the Directive (2001/42/EC) 7 requires an environmental report to be prepared for any assessment required by the Directive, which report evaluates the likely significant environmental effects of implementing the plan or programme and any reasonable alternatives, taking into account the objectives and geographical scope of the plan or programme. Moreover, the Directive requires that the reports are of sufficient quality. The judge explained, that: Quality involves ensuring that a report is based on proper information and expertise and covers all the potential effects of the plan or programme in question. In addition, since one of the purposes of the Directive is to allow members of the public to be consulted about plans or programmes which may affect them, the report should enable them to understand why the proposals are said to be environmentally sound. To that end, the report must not only be comprehensible but must contain the necessary information required by the Directive. 22. In short, the council in this case failed to provide the necessary information to the public in the form of an SA before it adopted its final policy, CS In respect of demolition, EIA has had a further impact, recently, on the scheme of the planning legislation 8. The challenge was to the Town and Country Planning (Demolition Description of Buildings) Direction Paragraph 2(1) provided that the demolition of certain buildings did not require planning permission, namely: (a) (b) (c) Any building which is a listed building. Any building in a conservation area. Any building which is a scheduled monument. 7 See the implementing regulations, Environmental Assessment of Plans and Programmes Regulations R (oao) Save Britain s Heritage v. Secretary of State for Communities and Local Government, Lancaster City Council, Mitchells of Lancaster (Brewers) Limited [2010] EWCA Civ 334 8

9 (d) Any building other than a dwellinghouse or a building adjoining a house. 24. The Court of Appeal granted a declaration that demolition under the sub-paragraphs (a) to (d) is capable of attracting PD rights under Part 31 such demolition is a project under the EIA Directive. Hence, where the proposed demolition work falls within either Schedule 1 or Schedule 2 of the EIA Regulations, a screening opinion is required before PD rights can be exercised. If the screening opinion is a positive screening opinion then a planning application will have to be made and an EIA carried out. R( Brown) v Carlisle City Council [2011] Env. L.R The claimant challenged a grant of planning permission by the Council to Stobart Air Limited for development of a freight distribution centre at Carlisle Airport. That development was linked to the execution of a s.106 agreement regarding runway improvements and the development of a terminal building. 26. The application for that challenged permission was not the first. The earlier application had proposed much broader development and works which were not at that time within the s.106 agreement but part of the main application. It was withdrawn following the Secretary of State s decision on June 18 th 2008 to call it in. The second application was for the Freight Distribution Centre alone and did not address the additional environmental impact of the works included in the s.106 agreement. 27. The claimant s principal ground of challenge was that the Council had failed to comply with regulation 3(2) of the EIA Regulations 1999 which prohibits the grant of planning permission without first taking into consideration environmental information, because the environmental statement accompanying the second application failed to address the additional environmental effects of the works in the s.106 Agreement. 28. The Council had concluded that the distribution centre on its own would not be in accordance with the development plan unless combined with the works under the s.106 obligation, but also that it was reasonable not consider those works in the assessment of the 9

10 cumulative effects of the development because there was no, or no significant functional link between the airport works and the freight distribution centre. 29. In allowing the appeal and quashing the permission because there were no exceptional circumstances to persuade him otherwise, Sullivan LJ held that; 21. No authority was cited for the proposition that the connection between two developments must be an operational or functional one for the environmental effects of one of the developments to be part of the cumulative effects of the other. The answer to the question what are the cumulative effects of a particular development will be a question of fact in each case. There may be a cumulative effect notwithstanding the absence of a functional link Lord Justice Sullivan considered at paragraph 44 that; If a permission is subject to a condition which requires certain works to be carried out, the environmental effects of those works will be part of the cumulative effects of the development which has been permitted. The fact that permission is granted subject to the completion of a s. 106 agreement which requires those works to be carried out is a difference of form, not substance for the purposes of the EIA Regulations. 31. In light of the objective of both the EIA Directive and the Regulations to ensure that any cumulative environmental effects should be considered before a decision is taken as to whether permission should be granted or not, it was considered that assurances by a planning authority that the effects will be assessed at some later stage are not compliant with reg. 3(2) of the 1999 Regulations. 32. What is particularly interesting is the importance Lord Justice Sullivan placed on the Environmental Information that had accompanied the first application. The High Court had found that the Environmental Statement with the first application (which considered the 10

11 distribution centre and airport works combined) had not found there to be any adverse effects so there was no prospect of a different outcome on reconsideration of the second application. The Court of Appeal however made clear that the obligation was to consider the representations in response to the Environmental Statement as well as the statement itself; 35 Even if the two applications had not been materially different, the fact remains that the defendant did not consider the environmental information which had been provided in respect of the first application when it came to consider the second application. the obligation under reg.3(2) is to take into account the environmental information, which includes not merely the Environmental Statement but, most importantly, any representations made in response thereto: see reg.2 (1), and Berkeley at 615D-616D. The totality of the information in respect of the first application had persuaded the defendant that it was a departure from the development plan and the Secretary of State that it should be called in. R(Dry) v West Oxfordshire [2010] EWCA Civ Dry challenged the grant of planning permission for a site to the east of Eynsham on the principal issue that the council had dealt improperly with the issue of flooding on that site. When the area in question had originally been allocated for housing the 2006 flood map prepared by the Environment Agency showed the proposed development as situated in Zone 1 which represented a low probability of flooding. In July 2009 The Planning Committee resolved to grant permission, but in the period between the making of that resolution and the issuing of the formal notice of permission in October, the Environment Agency issued an amended flood map showing most of the site within Zone An EIA point arose in that the negative screening decision given in 2008 made no mention of the 2007 flooding which the claimant argued was irrational. Carnwath LJ disposed quickly with the issue commenting that short of irrationality, it was a matter of planning 11

12 judgment for the council to decide what weight if any to give to the 2007 flooding. He went on; 10 I would add that, even if there were some theoretical merit in this point, it has in practice been overtaken by events. Whether or not the council were justified in taking such a narrow view of the flooding issue in 2008, the issue has in fact been fully considered in accordance with the requirements of the Environment Agency, on the basis of detailed reports prepared by the developers. There is no reason to think that, on that aspect, a formal requirement for an environmental assessment would have made any difference of any practical value to the applicant 35. The point to note is that if argument is advanced that there has been no formal requirement for an EIA when there should have been but the EIA in fact would have made no practical difference to the project, it will be of no consequence and the permission will not be quashed as a result. R. (Bateman) v South Cambridgeshire DC [2011] EWCA Civ The case concerned a negative screening opinion for the extension of a grain storage and handling facility in which the claimant argued that the planning officer failed to demonstrate that she had considered the likely effect of the development in relation to traffic movements, the landscape and noise of the project. In the alternative, it was argued that if she had, she had failed to explain sufficiently why an EIA was not required in that case. 37. So far as it is applicable to this case, the position clarified in Mellor 9 is that if a planning officer chooses to give reasons in the screening opinion, then the determination must be such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention. 9 R. (on the application of Mellor) v Secretary of State for Communities and Local Government (C-75/08) 12

13 38. The reasons given in Bateman for the negative screening opinion were as follows; 4. The main impacts of the development are likely to be: increase in traffic movements, landscape impact, and noise disturbance to nearby residents. Transport, Landscape and Noise Assessments are to be provided with the application. 5. Having regard to the selection criteria in Schedule 3 to the Regulations, particularly noting the size of the development, cumulation with the existing development and potential impact, it is considered that this major development will not have more than local importance, will not be proposed for a particularly environmentally sensitive or vulnerable location, and will not have unusually complex and potentially hazardous environmental effects. 39. Lord Justice Moore-Bick LJ commented; 20. I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term screening opinion. 13

14 40. He agreed with Richards LJ in Wye Valley 10 that it was not incumbent on a decision maker to set out in the screening opinion all the considerations it had taken into account. However, he felt able to distinguish Bateman on the facts and reluctantly came to the conclusion that the reasons given in the decision letter did not make it sufficiently clear why the planning officer reached the conclusion that an EIA was not required; 29. This case differs, in my view, from that of R (Wye Valley Action Association Ltd) v Herefordshire Council in an important respect. In that case it was reasonably clear from the way in which the opinion was expressed that the council had formed the view that the project was not an EIA development because the land in question was already under cultivation and was therefore not uncultivated or semi-natural. Having done so, it was unnecessary for it to identify or discuss the range of considerations taken into account in reaching that decision. In the present case, on the other hand, the planning officer failed to identify the correct test and failed to explain in any relevant way why she concluded that the development was not likely to have significant effects on the environment. 41. Lord Justice Mummery (dissenting) thought the case was close to the line and with considerable hesitation found that; 40 The submission by Savills (on behalf of the developer) that no EIA was required set out their position the size of the development and its impact and stated that the likely impact in landscape and transport terms would be addressed through the necessary landscape and transport assessments when the planning application was submitted. The Council accepted that approach. The overall position was that enough reasons were available to the claimants for them to know the 10 R (Wye Valley Action Association Ltd) v Herefordshire Council [2011] EWCA Civ 20 14

15 basis of the decision not to have an EIA and to mount a challenge to it. 41.In those circumstances the screening opinion was not, in my judgment, contrary to law for want of reasons or reasoning. I would dismiss the claimants application for judicial review. 42. Bateman stands in agreement with Wye Valley that as long as the reasons given are sufficient to enable potential claimant s to reach an informed decision whether to challenge the opinion for legal error, there is no requirement that a decision maker set out all the considerations it has taken into account in coming to a negative screening opinion. In Wye Valley however, the council arrived at the conclusion that the project was one that irrefutably did not require an EIA. 43. Where there is less certainty as to the need for an EIA, and reasons are given in a negative screening opinion, Bateman could well bite if the reasons given do not make it sufficiently clear how the conclusion was reached. It is not enough to highlight the potential risks or rely on the reasons given in the application for assessment. More detailed explanation must be given as to why these impacts aren t sufficiently serious, not just that they aren t. The get out clause for decision makers in Mellor that decision makers could supplement their reasons through information on request at a later date doesn t seem quite the safe haven it was before this decision. 44. Moreover, it is helpful to keeping in mind the fairly strong line taken by the Court of Appeal in R(Friends of Basildon Golf Course) v Basildon DC [2011] Env LR 16 ( 61): I have had difficulty in the course of this appeal in understanding why colours have been nailed so firmly to the mast of declining an EIA. Substantial bunding was contemplated. It had not been doubted, either by the respondents or by the interested party, that substantial further ecological study was necessary before a permission could be granted. It is difficult to understand why a decision that an EIA was necessary should present the psychological barrier it appears to have done. The need for an EIA may of course involve delay, and 15

16 there may be other factors of which I am unaware, but on any view it was arguable that an EIA was required in this case and the sensible and convenient course might well have been to require one. The decision is for the planning authority to make and I am not doubting that the courts will be slow to interfere with the authority's exercise of judgment when making that decision but it may not always be in the interests of the parties or of the public if a tough stance against requiring an EIA is readily adopted. Windfarms 45. Lastly, I mention a particular form of development: wind farms. It will very often be EIA development. Such development control decisions are important to all the parties and firm positions are taken. A short review of the recent legal issues is attached as an aide memoire. Richard Kimblin No.5 Chambers 30 th September

17 Some Recent Examples of Legal Issues Arising from Wind Farm Development Case Name Citation Issues Notes Hargreaves v Secretary of State for Communities and Local Government 2011 EWHC 1999 Dismissed Habitats, EIA screening direction Pink footed geese. Role of ECʼs Guidance on screening - just guidance - does not address issues of likely effect, merely whether an effect ought to be taken into account. When to consider mitigation in screening - Catt/Hart - consider mitigation which is part of the project. Appropriate assessment - is the ameliorating scheme mitigation or compensation - if compensation then ignore when assessing likely significant effect. Gwendolyn Renfree v Daniel Mageen & Secretary of State for Communities and Local Government & Cornwall Council 2011 EWCA Civ 863 Appeal allowed, SoS Decision upheld Screening Directions Guidance in Evans applied to appeal to SoS in which SoS had given a screening direction. Issue: circumstances in which the Inspector should refer the screening direction back to the SoS. A v difficult case to mount - have to show that any reasonable Inspector would have referred the matter back. Need a clear change in circumstances and also have to raise the issue with the Inspector, not save it for a s288 challenge. RWE Npower Renewables Ltd v The Welsh Ministers 2011 EWHC 1778 Application granted Reasons, fairness Peat - effect on blanket bog - a UK BAP priority habitat type. Turbines on deepest section. Design could be amended but would then fall outside of scheme assessed. Inspector refused on this ground alone. Developer called evidence but not asked any questions relating to the Inspectorʼs concerns 17

18 Case Name Citation Issues Notes Coronation Power Limited v Secretary of State for Communities and Local Government 2011 EWHC 2216 Application refused Alternatives Inspector refuses on basis of cumulative landscape impact. Makes reference to possibility of split decision. Challenge on basis of failure to give opportunity to explain viability of the alternative refused because appellant did not advance a case for a split decision. Inspector merely pointing out what might overcome certain of his concerns. 18