C0/12459/2011
Neutral Citation Number: [2012] EWHC 1830 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
THURSDAY, 31 MAY 2012
B e f o r e:
HIS HONOUR JUDGE MACKIE QC
(Sitting as a Deputy High Court Judge)
Between:
THE QUEEN ON THE APPLICATION OF EVANS
Claimant
v
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL
GOVERNMENT
Defendant
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MR STOOKES (a solicitor advocate) appeared on behalf of the Claimant
MR FORSDICK appeared on behalf of the Defendant
MR LEWIS appeared on behalf of the Interested Party
JUDGMENT
(As Approved by the Court)
Crown copyright©
1.
THE DEPUTY JUDGE: This is the renewed application for permission to apply for
judicial review brought by Mr Michael Evans against the Secretary of State (the
defendant). There are two interested parties Babergh District Council and Persimmon
Homes Anglia Limited.
2.
The claimant is a local resident who lives near the site which is the subject of this
dispute and he is chairman of the Cornard Tye Residents' Association. The identity of
the defendant is obvious. The district council is the relevant local council and
Persimmon Homes a proposed developer.
3.
The defendant is obliged under Regulation 6.4 of the EIA Regulations to make a
screening direction within three weeks of the date of receipt of a request. In the present
case, the Secretary of State's screening direction was delegated to a senior planning
manager known as the screener and the challenge relates to what happened after that.
4.
The claimant claims that the defendant has acted unlawfully by failing to comply with
it is EIA obligations in a number of respects. Its said that the screening direction, the
negative screening direction, is flawed by fundamental errors of fact. It is said that the
screening direction is perverse and has come to an illogical conclusion as to the impact
of the landscape change proposed in the development. It is said that the screener has
misunderstood English Heritage advice and has failed properly to have regard to the
significant adverse effect the accumulation of the development will have on the special
landscape area and on the setting of a grade 1 listed building, Abbas Hall. It is said that
the conclusion that there will be no significant impact in relation to the increased traffic
and highways work that will be required is perverse and that the screening direction is
flawed by the screener's failure to have regard to commission guidance as to what
constitutes significant effect. It is said that the screening direction is flawed because
the screener failed to apply the Waddenzee test as to the meaning of "likely".
5.
It is common ground that ground six cannot succeed unless the court holds that the law
is different from what it has been said to be by Lloyd Jones J recently in the Loader
case now before the Court of Appeal.
6.
The claim springs from the application for planning permission made by Persimmon for
170 homes and other associated works on a site east of Carson's Drive, Great Cornard,
Sudbury, Suffolk. The site is about 16 hectares with housing proposed on just over four
of those hectares. As I say, the grade one listed building at Abbas Hall is near the site.
The site is allocated for housing in the local plan.
7.
In November 2010 the Council adopted a screening opinion which concluded amongst
other things that the proposed development will not have a significant impact on the
environment by virtue of motion, traffic noise, vibrations and other matters. An
environmental impact assessment is therefore not required. However, the Council
reconsidered the matter following representations from the claimant's solicitors and in a
second opinion it concluded that an EIA was indeed necessary. It concluded that the
development proposals were likely to have an impact on the setting of Abbas Hall and
SMITH BERNAL WORDWAVE
on the locally designated SLA and there was a high probability of a significant
environmental event occurring.
8.
Persimmon then wrote to the Secretary of State in April 2011 for a screening direction.
This resulted in a letter dated 21 October 2011 which concluded in relevant part:
"Whilst recognising the historic and cultural importance of the landscape
both in terms of the grade one listed building at Abbas Hall, its status as
part of a special landscape area, and its cultural associations with the
works of Thomas Gainsborough, the location of the development largely
shielded by a bowl in the landscape and next to an existing housing
development together with the wider absorption capacity of open rolling
hills around the site mean that the impact of the development would not
be of sufficient magnitude to be likely to have a significant effect on the
environment."
9.
This led to a pre action protocol letter and the bringing of this claim on 20 December
last year. The application for permission on the papers was refused by Mr Kent QC on
27 February and has now been renewed today.
10.
The legislative background stems from Directive 85/337/EEC, known as the EIA
Directive. An EIA development is defined as "schedule 2 development likely to have
significant effects on the environment by virtue of facts as nature and the size of the
location", a formulation which is picked up in the letter from which I have just read.
This is scheduled 2 development.
11.
A screening direction is defined by regulation 2 as a direction made by the Secretary of
State as to whether development is an EIA development. Regulation 3.2 prohibits the
relevant planning authority from granting planning permission for EIA development
unless they have first taken into account environmental information as defined, and
these screening matters are then developed in regulations 4 and 5.
12.
The court has been assisted by appearances from Mr Stookes for the claimant, Mr
Forsdick for the Secretary of State and Mr Lewis for the second interested party. In his
submissions on the part of the claimant, Mr Stookes recognised at the outset that his
case can only succeed if the evaluation in any judicial review is to a more rigourous
standard than that of Wednesbury reasonableness. He submits that Wednesbury
unreasonableness, as applied in this area for a considerable period and on high
authority, sets too high a threshold when the decision under review is whether or not
the EIA Directive applies. He sets out eight reasons why the Wednesbury principle
should be departed from. But the essence of his submission is that the environmental
rights of the citizen, as they now stand as recently extended by European Union law,
will be stifled if the application of the Wednesbury principle is allowed to stand. He
also submits that this court can in effect disregard -- by reason of the fact that it is
considering EU matters, and specifically EIA ones -- or not follow decisions of higher
courts.
SMITH BERNAL WORDWAVE
13.
That submission is rejected by counsel for the other parties, who point out that not
dissimilar challenges have failed in the past over the years in cases like Malster and
most recently before Lloyd Jones J in Loader. It is also submitted, it seems to me with
force, that the submission being put forward is contrary to the House of Lords
authority, certainly to the speech of Lord Hoffmann, when read as a whole, in Berkeley.
14.
The position as it currently stands is helpfully put by Richards LJ in his judgment for
permission to appeal in Loader at the end of last year. He says:
"The other issue that the applicant seeks to raise is that the standard of
review of the decision as to whether a development is likely to have
significant environmental effects. The established view is that such a
decision is reviewable by the court only on grounds of Wednesbury
reasonableness."
15.
The court must follow the law as it stands and not speculate about how the law might
change. It is also important to bear in mind that a decision at this level departing from
that of Lloyd Jones J, quite apart from overcoming all of the other difficulties, would
also involve departing from the high and long established authority which lies behind
the views expressed by the judge.
16.
The application raises other issues. It is alleged that there is a fundamental error of fact
made in the course of the decision. I am not going to read out the competing
submissions on this or the other grounds, but it seems to me clear that what is said to be
a fundamental error of fact, except in relation to what boils down to a semantic point
about English Heritage, is essentially a disagreement about matters of professional
judgment between those representing the claimant and the Secretary of State.
17.
Similarly, again without recording the able and detailed submissions on either side, the
allegation that there are perverse and illogical conclusions about the impact of
landscape change is also no more than a well argued disagreement with the screening
officer's judgment as to the significance of the impact of matters which he has to
consider. Precisely the same point arises with the alleged misunderstanding of English
Heritage advice.
18.
There is a point raised about highways and transport matters. Here again it is a matter
of judgment, where the Secretary of State, through his delegated officer, was entitled to
find that there would not be significant effects resulting from the highways works.
19.
The other points, it seems to me, fall into the same category to the extent that they are
not rendered unarguable by Loader and similar cases.
20.
I agree with the view expressed by the deputy judge, who put it as follows:
"The elaborate grounds in the end do not identify arguable error of law.
The decision is plainly not unreasonable in the Wednesbury sense and
there are no decisive facts amongst those allegedly overlooked by the
Secretary of State of such a character that the decision is arguably
rendered unlawful."
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He also goes on to say, and I agree with this too:
"As to the argument that there is a jurisdictional precedent fact issue for
this court to argue, the existing authorities are clear."
He then goes on to express more lucidly than me, views similar to those which I have
already set out about the pending decision in the Court of Appeal in the Loader case.
21.
It is a particular pleasure to receive helpful submissions from a fellow solicitor,
particularly when they are put forward so ably and attractively by Mr Stookes. But his
bold submissions about Wednesbury are not sufficiently arguable to merit the grant of
permission.
22.
Accordingly, this application is refused and it follows that it is unnecessary for me to
deal with the protective costs issues.
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