EIA CASE LAW UPDATE Andrew Byass
Themes The standard of review Screening decisions: split development Screening decisions: cumulative effects Planning enforcement / retrospective permission HS2 (briefly)
The standard of review: screening (1) R. (on the application of Evans) v SSCLG [2013] EWCA Civ 114; [2013] J.P.L. 1027 Mr Evans relied on the Aarhus Convention and on the Aarhus Convention Compliance Committee's December 2010 report expressing concern about the Wednesbury approach to say that the Wednesbury test was inadequate to review screening decisions The Court upheld the Wednesbury approach applied in R. (on the application of Loader) v SSCLG [2012] EWCA Civ 869, which had in turn relied upon the ECJ s judgment in Commission v United Kingdom (C-508/03)
The standard of review: screening (2) Per Pill LJ (Toulson and Sullivan LLJ agreeing) in Loader: 43. What emerges is that the test to be applied is: Is this project likely to have significant effects on the environment? That is clear from European and national authority, including the Commission Guidance at B3.4.1. The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance, and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. Only if there is a manifest error of assessment will the [Court] intervene...
The standard of review: further information (1) R. (on the application of Evans) v Basingstoke and Deane BC [2013] EWHC 899 (Admin) A different Mr Evans sought to argue that the adequacy of further information provided under regulation 19 of the EEA Regulations should not be reviewable on Wednesbury grounds. Instead, it should be for the Court to decide The argument: whereas an environmental statement by virtue of the EEA Regulations must contain information as is reasonably required, no qualification of reasonableness exists in regulation 19 (see at [172]).
The standard of review: further information (2) The submission was rejected. The considerations that lead to Wednesbury review of environmental statements (following the decision of Sullivan J in R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin)) apply mutatis mutandis to further information : It is not necessary or desirable for statements or further information to address every conceivable environmental impact The statutory scheme provides opportunities for consultation, including in respect of further information, which are specifically in place to redress deficiencies
Screening decisions: split development (1) R. (on the application of Save Britain's Heritage) v SSCLG [2013] EWHC 2268 (Admin) The issue was when does demolition fall to be assessed as part of wider redevelopment proposals If it can be shown that the demolition will proceed irrespective of future development (here the Chapel to be demolished was derelict and a hazard) then likely no splitting or salami slicing (see at [258]) The test is objective albeit in assessing the circumstances evidence as to the intentions of the developer was both relevant and admissible (see at [291])
Screening decisions: cumulative effect (1) R. (on the application of Burridge) v Breckland DC [2013] EWCA Civ 228 Two applications for planning permission: (1372) for a biomass renewable energy plant and (0445) for a combined heat and power plant. (0455) was to be powered by the biogas produced by (1372), carried by a connecting pipeline It was argued that the applications should not be treated together as an application under regulation 7 of the EEA Regulations, following R (on the application of Candlish) v Hastings BC [2006] Env LR 13
Screening decisions: cumulative effect (2) This argument was rejected. A purposive approach that accorded with reality was needed. The reality included that: The applications were linked on their face The officer reports expressly linked one to the other The applications came before the Planning Committee for consideration on the same date The decisions in respect of the applications were issued on the same date This avoided the problem of neither project exceeding the relevant threshold in Schedule 2 and so EIA being entirely avoided (see at [80])
Planning enforcement (1) R. (on the application of Evans) v Basingstoke and Deane BC [2013] EWCA Civ 1635 The same Mr Evans who sought to argue that the adequacy of further information should not be reviewed on Wednesbury grounds At first instance and on appeal, he had also argued that the provisions in the TCPA 1990, s. 171B, conferring immunity against enforcement were contrary to Community law It was an attempt to re-open the thrust of the matters sought to be raised in Commission v UK (Case C-98/04), but which had been ruled inadmissible and never enlivened again
Planning enforcement (2) Stadlen J at first instance rejected the argument, inter alia, on the basis of the Community law principle of legal certainty. An analogy could be drawn with the time limits imposed in respect of bringing legal proceedings to challenge administrative decisions The CoA, in an ex tempore judgment, upheld Stadlen J s judgment for essentially the same reasons. Since it is Community law that cloaks the enforcement provisions with legality, there can be no conflict with the EIA Directive
Planning enforcement (3) S. 102 TCPA 1990 (relating to discontinuance of use or removal of buildings) was raised as a potential means of remedy. Such reliance was rejected: it is a draconian power, likely requires payment of compensation, and requires consideration of the development plan and to any other material considerations Failure to exercise the power under s. 102 upon request by a Claimant is an area of potential future challenge
Planning enforcement (4) R. (on the application of Baker) v Bath and North East Somerset Council [2013] EWHC 946 Ms Baker lived near a waste composting facility which had operated in breach of planning conditions and then without planning permission Her challenge was to the failure to take enforcement action following a positive screening direction made by the Secretary of State, in reliance upon the first instance judgment in Ardagh Glass Ltd v Chester City Council [2009] EWHC 745 (Admin) Delays ensued after the screening direction, relating to the provision of an environmental statement
Planning enforcement (5) Mr Justice Kenneth Parker held that there was no duty to take immediate enforcement action in respect of unlawful EIA development There had however been a delay of some 14 months in producing a environmental statement, up to February 2013, and a request at this time for a further three months to produce such a statement It was held to be reasonable to allow this extra time. A then recently instructed environmental consultant had attended a meeting at the Council in February 2013 and had provided assurances about the provision of the environmental statement, which the Council was entitled to accept
Retrospective permission (1) R (on the application of David Padden) v Maidstone Borough Council [2014] EWHC 51 (Admin) Challenge to retrospective permission for recreational fishing lakes, involving importation of 650,000m 3 of construction waste material Evidence of consequential ground water flooding at nearby property Council granted permission having considered the content of an ES which was alleged to be deficient and without considering, inter alia, whether (1) there were exceptional circumstances and (2) an unfair or improper advantage had been gained
Retrospective permission (2) Need to consider exceptionality / unfair or improper advantage arose from C-215/06 Commission v Ireland and Ardagh Glass [2011] P.T.S.R. 1498 Per Commission v Ireland, it should remain the exception Per Ardagh Glass, the decision-maker should consider: whether granting permission would give the developer an advantage he ought to be denied, whether the public can be given an equal opportunity to form and advance their views and whether the circumstances can be said to be exceptional The failure to consider these matters resulted in the quashing of the decision
Conclusion HS2 Action Alliance Limited, Buckinghamshire County Council & Others, Heathrow Hub Limited & Another v Secretary of State for Transport [2014] UKSC 3 As to the relationship between SEA and EIA, at [34], quoting Commission guidance: The two directives are to a large extent complementary: the SEA is up-stream and identifies the best options at an early planning stage, and the EIA is down-stream and refers to the projects that are coming through at a later stage. In theory, an overlap of the two processes is unlikely to occur.