Neutral Citation Number: [2013] EWHC 1269 (Admin)

CO/1022/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Tuesday, 29 January 2013

B e f o r e:

MR JUSTICE WALKER

Between:

THE QUEEN ON THE APPLICATION OF KENYON

Claimant

v

WAKEFIELD COUNCIL

Defendant

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Mr P Stookes (instructed by Richard Buxton Solicitors) appeared on behalf of the Claimant

Mr Evans (instructed by Wakefield Council) appeared on behalf of the Defendant

Mr Taylor (instructed by Ashursts) appeared on behalf of the Interested Party

J U D G M E N T

(As Approved by the Court)

Crown copyright©

1.MR JUSTICE WALKER: This case concerns a site to the east of the main thoroughfare through Hemsworth Town Centre. The site is currently divided into two distinct sections. The northern section comprises the existing Tesco superstore, associated car parking and delivery and servicing areas. The southern section comprises a vacant brick building which was formerly operated as a Coop supermarket and its associated car parking and delivery areas.

2.What is proposed is an extension to the existing superstore which would increase the gross floor space of the building by 35 per cent and the net floor space by 47 per cent. The proposal also includes the extension and full enclosure of the rear service yard, the Tesco building, an extension of the amount of customer car parking, revised circulation within the site and initial landscaping. In order to achieve all this, there would be demolition of the former Coop supermarket. That is a building which has a gross floor area of about a third of the current gross floor area of the Tesco superstore.

3.These proposals are not uncontroversial; there are some who are strenuously opposed to them. What I must stress is the very limited role that the court has in this regard. It is not the court's job to decide who should have planning permission. In relation to the major point that is raised, in his carefully and forcefully delivered submissions by Mr Stookes on behalf of the claimant, under Directive 2011/92/EU ("the EIA Directive") and the regulations made in this country which give effect to that, there may be a screening process conducted by the planning authority to decide whether an Environmental Impact Assessment is needed. It is not the role of the court to say that such an impact is desirable. The limited role for the court is to consider whether those who have taken such a decision have misunderstood the law governing their powers, have failed to apply that rule, have acted unreasonably or been guilty of some other error of public law such as would entitle the court to intervene.

4.With that introduction, I turn to the four grounds that are advanced on behalf of the claimant. The first of these is that the planning authority has unlawfully split an overall project for a superstore and associated development into two or more subprojects and has failed to consider the cumulative impact of the overall project when assessing whether it is likely to have significant environmental effects. Those last three words are crucial to this aspect of the case.

5.Mr Stookes has helpfully provided me with a copy of the recent Court of Appeal decision R(Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869, also reported at [2013] Env LR 7. The lead judgment was given by Pill LJ, with whom Toulson LJ and Sullivan LJ agreed. It was a slightly different context from the present case because it concerned a direction by the Secretary of State known as a screening direction, by which he stated the proposed development was not likely to have "significant effects on the environment" for the purposes of the relevant regulations. Those words, however, are essentially the same words as are found in relevant provisions concerning the screening assessment which was conducted by the planning authority in this case. The Secretary of State in that case conceded that the expression "is likely to have" means no more than there is a serious possibility of it happening.

6.Pill LJ quoted from the judgments of Dyson LJ and Carnwath LJ in R(Jones) v Mansfield District Council. Dyson LJ said that whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion. The effect on the environment must be "significant". Significance in this context is not a hardedged concept. The assessment of what is significant involves the exercise of judgment. Carnwath LJ said the word "significant" does not lay down a precise legal test. It requires the exercise of judgment on technical or other planning grounds and a consistency in the exercise of that judgment in different cases. That is a function for which the courts are illequipped, but which is well suited to the familiar role of planning authorities under the guidance of the Secretary of State.

7.The answer given by the planning authority and by the supermarket developer points to the screening assessment itself. There had been two screening opinions, each of them accurately set out the planning history and then described the overall superstore which would result. Each stated expressly that there was considered to be no accumulation of development which required the submission of a full EIA.

8.How is that point answered by the claimant? At the outset of his submissions, Mr Stookes referred me to the directive itself and, in particular, its recitals. Among other things, they stress the precautionary principle, the need to harmonise, and that if something is likely to have a significant effect on the environment, that should only be done if an Environmental Impact Assessment is carried out. They also stress the participation of the public. The directive identifies the selection criteria which has to be taken into account. Those include the size and accumulation with other projects. They also include the absorption capacity of the natural environment, paying particular attention among other things to areas in which the environmental quality standards laid down had already been exceeded and densely populated areas. Should there be an Environmental Impact Assessment, Article 5 identifies things which the developer is to provide to assist the process. That includes measures in relation to adverse effects. Both Article 6 and Article 8 contemplate public participation.

9.As to the detailed basis of challenge under this head, it was said that there had been no EIA assessment of earlier proposals; that is undoubtedly right. It does not follow from that that the planning authority erred in law in concluding that, when considering its screening opinion, it would be inappropriate to conclude that an EIA was needed. In one respect, it was pointed out by Mr Stookes, the report to the committee noted that the proposal would bring a benefit to residents, or so it was said. That was because there had been sleep disturbance to residents. It arose from the operation of the supermarket during the night with loading and unloading. The early morning unloading in particular was causing sleep disturbance; the application, by enclosing the area, was said to help that. Mr Stookes said this is something on which residents want to be informed. I am sure they do. But the question which arises is: do they need to be informed by means of an Environmental Impact Assessment?

10.Mr Stookes submitted that the answer should be yes, because the public ought to be entitled to participate. That, however, is not the test. The test very clearly identified by the directive in the passages that are cited by Mr Stookes is whether the decision may have a significant effect on the environment, giving that expression the meaning given to it in Loader.

11.There is no suggestion that the planning authority failed to approach the matter on a proper understanding of what was meant by, "may have a significant effect on the environment" or, "likely to have a significant effect on the environment". That is a very different test from asking, should the public be entitled to participate.

12.Another matter that was relied upon concerned arrangements under which the locality is to be designated an Air Quality Management Area. This was due to traffic adjacent to the location, especially heavy goods vehicles. It was said by Mr Stookes that the proposal would increase the volume of traffic and add to the air pollution which was already above acceptable levels. As to that, Mr Stookes himself acknowledged that earlier, when granting planning permission, the Secretary of State was influenced by a consideration that the arrangements for which he was giving outright permission would lead to shorter car journeys. The planning application, Mr Stookes accepted, is an occasion when air quality could be addressed. That assessment, he submits, should be part of the EIA and it should be run in conjunction with consideration of the effect on primary schools nearby and on local housing.

13.A file note prepared by the planning authority noted that issues of air quality had been debated by members at the Council's planning and highway committee meeting on 17 March 2011. Various matters of concern were identified. The file note continued:

"Notwithstanding the above, it is considered that the aforementioned factors considered by members at the committee meeting remained pertinent and that the proposed development would not have a significant detrimental impact upon local air quality..."

14.Mr Stookes said that the claimant did not disagree with what was said in that passage that I have quoted, but that it did not suffice to conclude that an EIA was not required. Air quality needed, it was said, to be informed by a full EIA.

15.Again, as it seems to me, that is not an application of the correct test. The test is not whether "air quality needs to be informed by a full EIA", which is of itself a value judgment. The test is the test that I have referred to earlier, whether there is likely to be a significant environmental effect.

16.The claimant's case, in effect, was that there is such uncertainty that the Council could not say that the effect on the environment will not be significant. The court's task, however, is not to form its own conclusion. It does not seem to me, on the basis of the material that has been submitted to me and the additional material that is before me in writing, that there is an arguable case to go forward of any public law error by the planning authority in relation to ground 1.

17.Ground 2 said that the planning authority failed to consider the question of land contamination when undertaking its EIA screening obligations. In that regard, what is said on behalf of the planning authority is that those who prepared the screening opinions had previously prepared the committee report, had seen a particular preacquisition environmental assessment which dealt with the issue of land contamination, and had the benefit of advice from the planning authority's contaminated land officer and had already noted, at the end of the committee report, that the proposed development would not result in any significant or unacceptable harm by reason of land contamination, subject to the imposition of indicated planning conditions. Each screening opinion stated in its conclusion that "the development is considered not to be one with particular complex and hazardous effects".

18.It was submitted by the planning authority that it was not necessary expressly to state everything that was taken into account. The skeleton argument on behalf of the developer noted what had been said by Dyson LJ in R(Jones) v Mansfield District Counsel. It was possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case.

19.As against that, Mr Stookes said that there will be some contamination issues which will need consideration before giving consent. The grant of permission identified measures to mitigate and the case for the claimant is that they should have been considered as part of the screening process. The point was made that contamination could affect adjoining landowners. Mr Stookes acknowledged that in one assessment the risk was considered to be low/moderate. That, however, he submitted, should have been part of the full consultation afforded by the EIA directive. Again, as it seems to me, the court must necessarily come back to the question of whether the claimant has shown an arguable case that the planning authority was obliged to conclude, in relation to the question of contamination, that this resulted in a significant environmental impact. When I say resulted in, met the test that I have described in Loader. It seems to me to be quite impossible for the claimant to make good such an assertion on the basis of the material that I have seen.

20.The same is true of ground 3 which is concerned with the reliance on mitigation measures, not merely for the contaminated land, but also as regards noise and reverberation from buildings, control of noise from vehicles, controlling construction noise and dust and relating to ecology and biodiversity of the site. Mr Stookes submitted there was some tension in the authorities as to the approach to be adopted. For the purposes of today, I take the approach advanced in the authorities which are said on behalf of the claimant to be those that are relied upon.

21.There are two authorities that fall into this category. The first is R(Lebus and others) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin). This was a decision by Sullivan J as he then was. What he said at paragraph 46 was that it was not appropriate for a person charged with making a screening opinion to start from the premise that, although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds.

22.That way of approaching the matter was adopted by Sullivan LJ in the Court of Appeal in the case of R(Birch) v Barnsley Metropolitan Borough Council [2010] EWCA Civ 1180. There, the screening opinion had merely stated that the impacts "should be controllable". That, said Sullivan LJ, was not merely inadequate, it was contrary to the underlying purposes of the regulations. For that purpose he cited his earlier decision in Lebus.

23.It does not seem to me to be arguable that the present case is in that category. There is nothing to suggest that those responsible for the screening opinion concluded, in relation to any of the matters listed in ground 3, that there might be significant impacts. The impacts which were described in the screening opinion were impacts which, for various reasons in relation to particular matters, are said to be not significant. That does not mean that they may not be appropriately dealt with in planning conditions. Those two aspects are entirely different.

24.I turn to the final ground that is relied upon. It concerns conditions which are said to restrict participation in decision making. Reliance is placed on two earlier decisions. The first was the decision of Ouseley J in R(Mid Counties Cooperative Limited) v Wyre Forest District Council [2009] EWHC 969 (Admin). A condition was in these terms:

"The food store hereby approved shall not exceed the following floor space allocations ... unless otherwise agreed in writing with the local planning authority."

Ouseley J said at paragraph 56 of his judgment:

"It makes hopelessly uncertain what is permitted. It enables development not applied for, assessed or permitted, to occur. It sidesteps the whole of the statutory process with the grant of permission and the variation of the conditions."

25.The second case is the decision of Mr Rabinder Singh QC, sitting as a Deputy Judge in R(Worley) v Wealden District Council [2011] EWHC 2083 (Admin), referring to what Ouseley J had described as a tailpiece. The Deputy Judge said that in the case before him, it left wholly uncertain, for example, who is to grant the variation, according to what criteria, which had been nonexistent or at least unpublished in secret. On the face of the condition there was nothing to stop, it would seem, an application being made to vary the limitations in condition 2 to such an extent that "any" day could become each and every day or perhaps each and every day over a sustained period of time.

26.It seems to me that the conditions which are relied upon in the present case are of an entirely different kind, as is pointed out in the skeleton arguments for the planning authority and the developer. The two cases involved conditions that allowed potential changes to key parameters which defined the extent to which the development was likely to have effects upon the environment.

27.The conditions in the present case are of a very familiar kind which identify a workable way forward in order to deal with matters which, as I indicated earlier when dealing with grounds 2 and 3, are properly dealt with by way of planning conditions. Accordingly, on this ground as on the others, I consider that, despite the matters which have been urged upon me with eloquence by Mr Stookes, I cannot grant permission for this case to proceed.