Neutral Citation Number:  EWHC 1238 (Admin)
Case No: CO/12946/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE OUSELEY
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(1) SECRETARY OF STATE FOR TRANSPORT
(2) THE CHILTERN RAILWAY COMPANY LIMITED
(3) NATURAL ENGLAND
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(Transcript of the Handed Down Judgment of
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Mr Hugh Richards (instructed by Richard Buxton & Co Solicitors) for the Claimant
(1) Mr James Strachan (instructed by Treasury Solicitors) for the 1st Defendant
(2) Mr Timothy Straker QC (instructed by Eversheds Solicitors) for the 2nd Defendant
(3) Mr Ned Westaway (instructed by Natural England) for the 3rd Defendant
Hearing dates: 19 March 2013
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As Approved by the Court
MR JUSTICE OUSELEY :
1. The Secretary of State for Transport made the Chiltern Railway (Bicester to Oxford Improvements) Order 2013 under the Transport and Works Act 1992 and notified its making in the London Gazette on 22 October 2012. The Secretary of State had issued his decision to make the Order in a letter dated 7 October 2012 following an Inquiry in 2010-11, a reopened Inquiry in August 2012, and a report and two addendum reports by an Inspector who made recommendations as to the decision. The challenge to the Order is brought under section 22 of the 1992 Act on the grounds that the Order was not within the powers of the Act.
2. The Order permits Chiltern Railway Company Limited, the Second Defendant to carry out works on the railway between Oxford and Bicester, and to construct a new length of railway enabling through trains to run from Oxford to London Marylebone by connecting the Oxford to Bicester Line to the Bicester to London line. The section of line with which this claim is concerned would leave the Oxford to Worcester and Malvern, and Oxford to Banbury lines about 3 kms north of Oxford Station, heading northeast to Bicester. It would pass about 1km to the east of parts of the Oxford Meadows Special Area of Conservation, SAC. The existing Oxford to Worcester and Oxford to Banbury lines pass between ½ and 1½ km to the east and north of the parts of the Oxford Meadows SAC which are relevant to this case.
3. The Oxford Meadows SAC was designated because of two qualifying interests. One, creeping marsh wort, is not relevant. The other, lowland hay meadow habitat, is relevant, and is present in three of the four Sites of Special Scientific Interest, SSSI, which are within the SAC. It is the effect of air pollution from oxides of nitrogen, NOx, on that habitat which underlies this case.
4. Chiltern Railways contended to the Inspector at the re-opened Inquiry that the assessment it had done showed there to be no likely significant effect on the SAC from its project and therefore that no appropriate assessment under the Habitats Directive and the Conservation of Habitats and Species Regulations (CHS Regulations) 2010 SI No 490 was required, nor further assessment or mitigation. Natural England, the Third Defendant and the statutory advisor to the Government on nature conservation, contended to the Inspector that further survey work was required in order to satisfy the requirements of the Directive and Regulations, and that a condition should be imposed requiring such survey work, followed by the implementation of mitigation measures if necessary.
5. The Inspector agreed with Natural England, taking the view that the effect of such a condition meant that there would be no likely significant effect on the SAC. The Secretary of State accepted that recommendation and accordingly imposed a condition, numbered 31, on the deemed planning consent.
6. The question whether Condition 31 or a similar condition was necessary had been an issue at the first Inquiry, addressed by Natural England in written representations. The Inspector had recommended, and the Secretary of State had accepted, that such a condition was necessary and that with it, he could be satisfied that no significant environmental effect on the SAC was likely. The Inspector, however, had recommended the refusal of the Order because of a problem over the licence for disturbing bats, without which the scheme would be impeded. The Secretary of State sought further evidence and reopened the Inquiry to deal with that issue. He also invited further evidence on other matters including:
"(iii) Whether condition 31 (Measures for the Protection of the Lowland Hay Meadow Habitat and the Oxford Meadows Special Area of Conservation) in the form now proposed in the Annex to the Department's letter of 24 January 2012, would serve to ensure that the scheme in operation would not be likely to have an adverse effect on the integrity of the Oxford Meadows SAC, having regard to the conservation objectives of the site, by reason of air pollution."
7. This was the subject matter of evidence leading to the Inspector's conclusion and recommendation after the re-opened Inquiry, and to the decision now challenged.
8. The Claimant, an objector at the Inquiry, had argued that the proposed Condition 31 would not be effective, and that an appropriate assessment under the Habitats Directive and Conservation of Habitats and Species Regulations was still required. The Claimant pursues that point here. He contended that, properly interpreted, the Directive and Regulations required an appropriate assessment to be carried out unless the Secretary of State was convinced that there was no possibility of an appreciable adverse effect. The existence and terms of Condition 31 showed that the Secretary of State was not and could not lawfully be satisfied that there would be no possible significant effect. The mitigation which might come about from the operation of the condition could not be regarded as part of the project, in particular because of the requirement in Condition 31 for base line surveys of the SAC. This was said to demonstrate that, whether as a matter of rationality or an assumption made without evidence, the Secretary of State had unlawfully avoided the obligation to require an appropriate assessment.
9. I turn first to the legislation and the jurisprudence since that is the backdrop of the imposition of Condition 31.
The Conservation of Habitats and Species Regulations
10. It is sufficient for these purposes to refer only to the provisions of the Regulations. Regulation 61 provides:
"61.-(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which-
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications for that site in view of that site's conservation objectives.
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body [Natural England] and have regard to any representations made by that body within such reasonable time as the authority specify.
(4) They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."
11. Regulation 61 includes a screening process in regulation 61(2), and regulation 61(6) is of obvious importance.
12. The meaning of "likely" in relation to significant effect has been considered in a number of cases by the CJEU. The circumstances requiring an "appropriate assessment" were considered in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij Case C-127-02  2CMLR 31; CJEU; "Waddenzee". There had to be a "probability or a risk" that a plan or project would have significant effects on the site. But the precautionary principle meant that such a risk existed "if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned." This "implies that in case of doubt as to the absence of significant effects such an assessment must be carried out...." Hence, the first sentence of Article 6(3) "must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects."
13. I was also referred to the opinion of A-G Sharpston in Sweetman and Others v Au Bord Pleanala, Case C-258/11, delivered 22 November 2012. She made the point that versions of Article 6(3) in languages other than English, showed that "likely" could suggest a higher degree of probability than intended, and "capable of having an effect" was closer to the true sense of the Directive. It was the "possibility" of a significant effect which generated the requirement for an appropriate assessment; and at that stage in the process "significant" was only a threshold test designed to eliminate plans or projects which had "no appreciable effect". At the second stage, a plan or project could only be authorised if the competent national authority is "convinced that it will not adversely affect the integrity of the site concerned."
14. The domestic Regulations have to be interpreted in conformity with the CJEU jurisprudence.
15. The relevance of conditions to the screening process and to the likelihood of significant effects has been considered in a number of domestic cases. These are Gillespie v Secretary of State for Transport, Local Government and Regions  Env LR 30,  EWCA Civ 400, R (Jones) v Mansfield District Council  Env LR 2,  EWCA Civ 1408, R (Catt) v Brighton and Hove City Council  EWCA Civ 298, and R (Hart District Council) v Secretary of State for Communities and Local Government  EWHC 1204 (Admin).
16. I start with Gillespie. This was an EIA case, not a Habitats Directive or appropriate assessment case. However, the latter would be yet more demanding. Mr Richards, for the Claimant, put considerable reliance on it. Pill LJ said at paragraph 36 and following:
"36. When making his screening decision, the Secretary of State was not in my judgment obliged to shut his eyes to the remedial measures submitted as a part of the planning proposal. That would apply whatever the scale of the development and whether (as in BT) some harm to the relevant environmental interest is inevitable or whether (as is claimed in the present case) the development will actually produce an improvement in the environment. As stated in Bozen, it is the elements of the specific project which must be considered and all the elements of the project relevant to the EIA. In making his decision, the Secretary of State is not required to put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision...
37. The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously but the Secretary of State is not as a matter of law required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not in my judgment pre-determined either by the complexity of the project or by whether remedial measures are controversial though, in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration.
40. In the circumstances, it was necessary to consider the stage which the site investigation had reached (condition VI requires a future site investigation in detail to be undertaken), the nature and extent of the scheme for remediation, including its uncertainties, the effects on the environment during the remediation and the likely final result. The condition is properly drafted but itself demonstrates the contingencies and uncertainties involved in the development proposal, as does the evidence of Mr Simmons already quoted.
41. When making the screening decision, these contingencies must be considered and it cannot be assumed that at each stage a favourable and satisfactory result will be achieved. There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached. I am not concluding that the present case is necessarily one of these but only that the test applied was not the correct one. The error was in the assumption that the investigation is and works contemplated in condition VI could be treated, at the time of the screening decision, as having had a successful outcome."
17. Laws LJ said at paragraphs 46 and 48:
"46. I would express my reasons for dismissing the appeal very shortly as follows. Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA. If then the Secretary of State were to decline to conduct an EIA, as it seems to me he would pre-empt the very form of enquiry contemplated by the Directive and Regulations; and to that extent he would frustrate the purpose of the legislation."
48. In the result, in my judgment the Secretary of State has deployed Condition VI effectively as a surrogate for the EIA process. That is illegitimate. Accordingly his decision cannot stand."
18. While agreeing with both, Arden LJ explained at paragraph 49 what she saw as the principle which underlay the other judgments:
"However, I would make it clear that in my view the question whether in a case such as this the Secretary of State can, in making his screening decision, take into account proposed conditions to be attached to the grant of permission turns not on the complexity or controversiality of the development as such but on the nature of the remedial measures contemplated by such conditions. Such measures can be taken into account if, fairly considered, they are of themselves unlikely to have significant effects on the environment because, for example, they are of limited impact or well-established to be easily achievable within the process of the development. Applying the foregoing, I agree that in this case the Secretary of State proceeded on the wrong basis for the reasons which have already been given by Pill and Laws LJJ. The court is required to interpret the 1988 regulations in the light of the EC Council Directive 85/37/EEC of 27 June 1985 and in a manner which gives effect to the purposes of the Directive as appearing from its provisions and its preamble. As I see it, the conclusions of the court on this appeal proceed on the basis of that approach to interpretation."
19. Mr Richards said that the Secretary of State had used Condition 31 here as the impermissible surrogate for the "appropriate assessment" process which should have been undertaken.
20. This decision was discussed in Jones, again an EIA case, at paragraphs 38-39, by Dyson LJ:
"38. It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie). The effect on the environment must be "significant". Significance in this context is not a hard-edged concept: as I have said, the assessment of what is significant involves the exercise of judgment.
39. I accept that the authority must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment. But this does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter. As the judge said, the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is 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."
21. Catt does not advance the issue beyond highlighting the role which uncertainty plays in what can be predicted with confidence.
22. Sullivan J considered these authorities in Hart, this time in the context of the Habitats Directive, and the related predecessor Regulations. He said at paragraph 76:
"76. For all these reasons, I am satisfied that there is no legal requirement that a screening assessment under reg. 48(1) must be carried out in the absence of any mitigation measures that form part of a plan or project. On the contrary, the competent authority is required to consider whether the project, as a whole, including such measures, if they are part of the project, is likely to have a significant effect on the SPA. If the competent authority does not agree with the proponent's view as to the likely efficacy of the proposed mitigation measures, or is left in some doubt as to their efficacy, then it will require an appropriate assessment because it will not have been able to exclude the risk of a significant effect on the basis of objective information (see Waddenzee above)."
(Regulation 48(1) was the precursor to Regulation 61(1) in CHS Regulations; it is R61 (6) which deals with conditions.)
23. Mr Richards sought to distinguish that case on the ground that it involved a specific proposal for informal play space outside an SPA intended to remove all the risks which informal recreation would create for the SPA, whereas the instant case involved measures to be instituted in the SAC to mitigate harm.
The Inspector's Second Report and the Decision
24. The Inspector set out the argument for Chiltern Railways that the evidence was already so robust that he could now be confident that there would be no significant effect on the SAC, and then the contrasting view of Natural England (paragraph 7.4.2.) that:
"the current data, completely based on modelling, leave room for uncertainty and so a precautionary approach should be taken in the light of the significance and sensitivity of the SAC."
(The reference to current data is not a reference to the present levels of NOx but to data then described in paragraph 7.4.3 of the Inspector's Report which is the currently available data including predictive data. The air quality assessment by Chiltern Railways included not just the effect of rail traffic but importantly the effect of the railway project on traffic flows on the A40 and A34, increasing on the one and reducing on the other.)
25. Although, at the re-opened Inquiry, Chiltern Railways used annual average daily traffic flows following criticism of its use of different data at the first Inquiry, the method it used for distributing trips associated with the new project was not absolutely accurate to the Inspector's mind, nor had the method been calibrated for that purpose. The base flows compared reasonably well with actual traffic data however. The Inspector continued in paragraph 7.4.3:
"Although the expected traffic-related reduction in the air pollution base line is not considered in Chiltern's air quality assessment (which adds to its robustness in the longer term) I am not persuaded that the new traffic assessment offers results of such reliability that the need for a condition such as Condition 31 can be discounted".
He also commented that a source of air quality data used by Chiltern Railways was relatively coarse in comparison with the scale of the SAC and there might be an under-estimation of concentrations. This also helped persuade the Inspector that Condition 31 was necessary.
26. He concluded at paragraph 7.4.5:
"For all of these reasons I am not satisfied that the precautionary approach advocated by Natural England, and which I previously recommended, should be set aside...I conclude that a condition to protect the lowland hay meadow habitat at the SAC should be imposed".
27. He then turned to Condition 31. At paragraph 7.4.8 the Inspector said:
"But the re-drafted Condition requires the assessment of baseline exposure to nitrogen oxides, and that should include all sources that influence nitrogen oxide concentrations at the relevant parts of the SAC. To ensure that it does, Condition 31 should explicitly require the incorporation in the Scheme of Further Assessment of appropriate field observations of nitrogen oxide concentrations, and time should be allowed, between approval of the Scheme of Further Assessment and the opening of the scheme to passenger trains, for the baseline assessment to be concluded and reported (and the report accepted) before the scheme can influence conditions at the SAC. Such an allowance could incorporate the Water Eaton Parkway preclusion referred to in paragraph 7.4.7 of this report."
28. He then explained why, again as a matter of precaution, Cassington Meadows SSSI which is part of the SAC, should also be included in the assessment required by the condition. He continued at 7.4.10:
"Objectors question whether suitable mitigation measures are available and how they could be secured if found to be necessary. Potential mitigation measures and the means by which they could be implemented have been identified and I am satisfied that the arrangements proposed are appropriate."
He then set out the terms of the condition, redrafted from the version referred to in his first report, drawing on the statement of common ground between Chiltern Railways and Natural England prepared for the reopened Inquiry.
29. Mr Richards for Mr Feeney put considerable weight on what Natural England had said to the Inspector at the re-opened Inquiry about the condition. The Inspector summarised that in his report. At paragraph 4.3.2 he recorded Natural England's position that Condition 31 would serve to ensure that the railway project, in operation, would not be likely have an adverse effect on the integrity of the SAC, but that the condition was necessary because of the potential for an indirect chemical impact on the lowland hay meadow habitat. The Inspector noted Natural England's closing submissions at paragraph 4.3.5:
"Although Chiltern has provided some modelling data the potential for significant adverse effects cannot be ruled out until the impact of the scheme has been assessed against on site data. The current data which are completely based upon modelling leaving room for uncertainty. By requiring further assessment, Natural England adopts a precautionary approach, in light of the significance and sensitivity of the SAC".
It is the first sentence which Mr Richards strongly relied on.
30. At paragraph 4.3.6, Natural England is recorded as saying:
"The draft condition provided a robust series of steps in which data would be gathered, thresholds set and (if necessary) mitigation carried out."
31. It continued:
"There is no reason to believe that management measures (if necessary) could [not] be carried out in the relevant units for example, one measure is the possibility of varying the grazing of the area by cattle; but it would not be appropriate at this stage to set out what might hypothetically be required by way of management. The important point is that tried and tested management techniques are available and that there can be confidence that they would be implemented. Accordingly Natural England is able on the basis of condition 31 to rule out the possibility of likely significant effects on the SAC.
4.3.7 The precautionary approach adopted by Natural England in this regard is entirely in accordance with EU Law."
And for those purposes it referred to relevant jurisprudence including the decision in Hart above.
32. Mr Feeney's case is recorded starting at paragraph 5.13.8. He referred to the concern that air pollution models were underestimating concentrations of emissions which the Inspector accepted as a risk and was one reason why the precautionary condition was imposed, and to the extent to which depasturing would be effective as a measure of removing excess nitrogen inputs, concluding at paragraph 5.13.11:
"An appropriate assessment is necessary because reasonable doubt exists as to the absence of significant adverse effects on Oxford Meadows SAC."
33. That is, of course, the position maintained by Mr Feeney which Natural England and the Inspector rejected.
34. Paragraph 14 of the decision letter of 17 October 2012 agreed that, in order to protect the lowland hay meadow habitat at the SAC, further assessments of air quality were required and that the condition as proposed by the Inspector:
"would serve to ensure that the operation of the new railway, including the associated road traffic effects, would not be likely to harm the qualifying interests or species for which the SAC was designated by virtue of air pollution for the reasons given by the Inspector..."
35. Condition 31 as recommended was then imposed and the Secretary of State said that he remained of the view "that it is unnecessary for him to carry out an Appropriate Assessment of the effects of the scheme on the SAC."
36. In paragraph 8 of the decision letter of 17 October 2012 the Secretary of State emphasised that it had to be read in conjunction with the November 2011 and January 2012 letters, as the three together conveyed the full reasons for the decision. In paragraph 24 of the decision letter, he dealt with the alleged breach of European law relevant to this particular challenge. He said:
"The Secretary of State is satisfied that the evidence before him is sufficiently robust for the purpose of assessing the likely impacts of the scheme on the SAC, before deciding whether to authorise the scheme. In this regard he has taken into account the Habitats Regulations Screening Assessment contained in the ES, the views of Natural England reported at SR 4.3.1 to 4.3.7, and the Inspector's conclusions at SR 7.4.12 and paragraph 9.10.18 of the main report. These support the conclusion that the scheme is not likely to have any significant effect on the integrity of the SAC. The Secretary of State is satisfied further that condition 31 is an appropriate precautionary measure to exclude the possibility of significant effects on the SAC and, as noted by Natural England, it is entirely in accordance with European law to take into account mitigation measures when deciding at the screening stage whether or not significant effects would be likely on a protected site (SR 4.3.7)."
37. What the Inspector said and the structure of his conclusions in his report to the Secretary of State following the first Inquiry is important. This was the main report.
38. The Inspector first dealt with air quality impacts including effects on the relevant SSSIs within the framework of the Environmental Statement. The two relevant to this case, dealt with at that stage, were Pixey and Yarnton Meads SSSI, and Wolvercote Meadows SSSI. He said:
"9.8.54 (g) At Pixey and Yarnton Meads SSSI and at Wolvercote Meadows SSSI, the annual mean nutrient nitrogen deposition would be probably a little less than 20.05 kg/ha/yr at the first and 20.45 kg/ha/yr at the latter [9.8.53]. These lowland hay meadows share the nitrogen-rich circumstances and favourable condition mentioned in paragraph f) [4.9.14]. I conclude that the Scheme is not likely to have an adverse effect on the notified special interest features of this SSSI."
39. He had already set out two other relevant factors: airborne emissions from traffic dispersed to insignificant levels within 200ms; the area of particular concern was road traffic emissions of NOx from the anticipated scheme-related increase in traffic on the A40, no allowance being taken for the calculated reduction in flows on the A34. Second, the table preceding paragraph 9.8.54 contained the estimated levels of scheme-related NOx deposition at those two SSSIs.
40. The evidential basis for the favourable current condition of the SSSIs, at least at the re-opened Inquiry, was the evidence submitted by Natural England, based on an assessment of August 2010. Indeed, it said that the SAC was "generally in excellent condition"; all but 13 of 267 hectares were in "favourable condition" and 3 of the others were "recovering".
41. It is therefore with that in mind that the Inspector's later conclusions in the main report in relation to the three SSSIs, seen as part of the SAC, have to be read, measured against the CHS Regulations interpreted conformably with CJEU jurisprudence on the Habitats Directive. He specifically and correctly addressed the meaning of "likely" in the Habitats Directive and CHS Regulations, in paragraph 9.10.12 and 9.10.14. He said this in paragraphs 9.10.15-16:
"9.10.15 When the Environmental Statement was prepared, a precautionary approach was suggested whereby a planning condition would require the monitoring and remediation of harm to the lowland hay meadow interest of the SAC that might arise from the Scheme; ... and it seems to me that there is at least a reasonable prospect of the action in question being performed within the time available. Such a condition would provide confidence that the risk of harm to the lowland meadow qualifying interest of the SAC would be excluded, and is necessary to provide such confidence. It should apply to those parts of the Oxford Meadows SAC that are co-terminous with the Wolvercote Meadows SSSI, the Pixey and Yarnton Meads SSSI and the Cassington Meadows SSSI."
Subject to such a condition (Condition 33 in Appendix 1), I am satisfied that operation of the new railway, including the associated road traffic effects, would not be likely to harm the qualifying interests or species for which the SAC was designated by virtue of air pollution."
42. This led to the conclusion in paragraph 9.10.18 that the scheme, subject to planning conditions would not be likely to have any significant effect on the integrity of the SAC.
The condition at issue
43. Condition 31 reads as follows:
"Development shall not commence on the Individual Section or Sections between Oxford North Junction and Rewley Abbey Stream ("the relevant sections") until a Scheme of Further Assessment of Air Quality in relation to the Cassington Meadows SSSI, the Pixey and Yarnton Meads SSSI and the Wolvercote Meadows SSSI that are co-terminous with part of the Oxford Meadows SAC ("the relevant parts of the SAC") has been submitted to and approved in writing by the local planning authority for the relevant parts of the SAC (in consultation with Natural England).
The Scheme of Further Assessment shall include the following:
"i) a methodology and programme for assessing the baseline exposure to oxides of nitrogen and inferring nitrogen deposition of the relevant parts of the SAC, including appropriate field observations of nitrogen oxide concentrations;
ii) a methodology and programme for monitoring the rates of exposure to oxides of nitrogen (and inferring nitrogen deposition) of the relevant part of the SAC that may be emitted from such additional road traffic, which is using the A34 and A40 close to the relevant parts of the SAC, and such additional trains as are attributable to the opening of the relevant sections of the development to passenger rail traffic;
iii) predictions, based on the air quality monitoring, for a period of 10 years after opening of the relevant sections of the development to passenger rail traffic, of the likely additional rates of exposure to oxides of nitrogen (and inferred nitrogen deposition) of the relevant parts of the SAC, that are likely to arise as a consequence of the opening of the relevant sections of the development to passenger rail traffic and the development's associated road traffic;
iv) a methodology for attributing the relevant proportions of the recorded exposures to oxides of nitrogen of the relevant sections of the development once opened for passenger rail traffic based on road traffic counts, railway operations data and surveys of modes of transport and routes used by users of the development;
v) a methodology and programme for a baseline vegetation survey and evaluation of the designated Annex 1 lowland hay meadow habitat situated on the relevant parts of the SAC and for subsequent vegetation surveys, if such are demonstrated to be necessary following steps (i) to (iv);
vi) criteria and thresholds for determining the inferred nitrogen deposition from oxides of nitrogen which can be attributed to the opening of the development to passenger rail traffic that are designed to protect the designated Annex 1 lowland hay meadow habitat in the relevant parts of the SAC;
vii) the proposed means of mitigation (which is likely to include changes to the management regimes for the relevant parts of the SAC) in the event that the criteria or thresholds referred to in (vi) are not met or are exceeded; and,
viii) the arrangements for the reporting and mitigation to be undertaken in accordance with the Scheme of Further Assessment.
The approved Scheme of Further Assessment shall be implemented as approved.
The development shall not be opened to passenger rail traffic, nor shall the car park or station at Water Eaton Parkway be opened for public use, until the approved assessment of baseline conditions referred to in i) above, has been completed as approved and reported to the local planning authority for the relevant parts of the SAC, and any other reports made in accordance with viii) above, and the local planning authority has issued written acceptance that the report complies with the approved Scheme."
Discussion and Conclusions
44. There is, first, no issue between the parties as to the approach to the need for an appropriate assessment, enjoined by the CJEU in Waddenzee, and which applies to the domestic Regulations. Regulation 61 requires such an assessment, carried out in the manner specified, where there is a doubt as to the absence of significant effects. It must be shown by objective evidence that the project would not have a significant effect. This is the approach which was plainly understood and adopted by the Inspector and Secretary of State, as can readily be seen from the passages quoted above from the two Reports and the 17 October 2012 decision letter. It is highlighted by the contrast between the language and approach of the Inspector when dealing with the Environmental Statement and impact on the SSSIs, and the language he used when dealing with the same air quality impact on two of the same SSSIs, viewed from the perspective of the Habitats Directive and CHS Regulations. In the former, the Inspector was satisfied that the scheme was "not likely to have an adverse effect on the notified special interest features of this SSSI"; and in the latter, he adopted a precautionary approach, requiring Condition 31 to exclude the risk of harm which might arise.
45. Second, there was however an important issue over the extent to which a condition could play a part in the decision as to whether an appropriate assessment was necessary. Plainly, a condition is not irrelevant in all cases since, by Regulation 61(6), the authority "must have regard" to the manner in which the scheme is proposed to be carried out "or to any conditions or restrictions subject to which they propose that the consent...should be given." So, on the face of the Regulations, the Secretary of State was entitled, as he did, to take account of the condition which he proposed to impose, in judging whether or not there was a need for an appropriate assessment. The screening assessment can also take account of mitigation measures which form part of the project, as was recognised in Hart and is the logical companion to Regulation 61(6). As Sullivan J pointed out, if the condition leaves doubt as to its efficacy in excluding the risk of a significant effect, an appropriate assessment will still be necessary.
46. Mr Richards contended, however, that Condition 31 was not of the nature which the Regulations contemplated since it was not capable of being part of the project, or a restriction or control on what could be done. Rather it provided for a means of assessment of impact and for remedial measures. An alternative way of looking at it, on his submissions, was that its existence showed that there was a risk of harm and it could not be known, before the grant of development consent, whether the condition would be effective in removing that risk. He drew parallels with the condition which was found ineffective in Gillespie.
47. It is important to understand the purpose and effect of Condition 31 on the facts of this case. Mr Richards characterised it as requiring information to be obtained about the present state of NOx pollution on the lowland hay habitat, and about the effect of the scheme on the levels of NOx on it, leading to an analysis of remedial measures, and their implementation. His argument focused on the requirement for a baseline survey. As at the date of the decision, the condition therefore showed that the Inspector and Secretary of State did not have and knew that they did not have enough information about those matters, nor could they know whether the remedial measures which were then required to remedy the effects of the scheme, whatever they might be, could be implemented so as to prevent harm to the SAC. Therefore, an appropriate assessment was required.
48. But that, in my judgment, is a mischaracterisation and misunderstanding of the purpose and effect of the condition. The structure of the condition is this. First and before a particular part of the railway development is started, a scheme for the further assessment of air quality on the relevant parts of the SAC has to be approved; this is concerned with NOx. There is then no bar to this particular part of the railway development being started. Second, the assessment scheme has to be implemented as approved. This is a continuing obligation after the railway as a whole is open. But, third, before the railway as a whole is opened to the public and the nearby station and car park is opened for use, some of the work required by the approved scheme of further assessment has to be carried out and itself approved. That work is the baseline assessment of NOx and the arrangements for reporting and for any mitigation to be undertaken. Thereafter the railway and station can be opened to the public; this may lead to the deposition of NOx on the SAC. But it will be monitored, that which is attributable to the project will be ascertained by the previously agreed methodology, and if necessary, mitigation measures will be taken. The approved scheme of further assessment thus continues in operation as further parts come into play.
49. This condition has to be understood in the context of the debate at the Inquiry about what the data showed to be the likely effect of the railway project on the deposition of NOx on the SSSIs. As I have said, Natural England gave evidence about the currently favourable status of at least two of the SSSIs, notwithstanding their location close to road and railway. Cassington Meadows SSSI is further than the other two from existing and proposed railways and from the A40. It was Chiltern Railways' contention that it could be left out of the condition, and it was only kept in by the Inspector because of the possibility of an effect. So the Inspector and Secretary of State did not approach this on the basis of an absence of knowledge about the condition of the SAC. The area of concern from road traffic NOx was only the parts of the SAC anyway within 200m of the road.
50. There was data from Chiltern Railways which showed the predicted deposition of NOx, in support of its conclusion that there would be no effect at all, and that no condition was required. The Inspector accepted, again as I have set out, that the railway project was not likely to have an adverse effect on the features of special interest of the SSSIs, of which the lowland hay meadow habitat was obviously one; this was approaching them as SSSIs rather than as SACs to which the Habitats Directive and CHS Regulations applied. The problem which the Inspector and Natural England faced was that the approach enjoined by the CJEU to the Habitats Directive, and which they applied, required greater certainty than the predictive data provided by Chiltern Railways gave them. The uncertainty was not so much what the position was at present but what it would be with the railway in operation and the traffic changes which the new station and car park would also cause. There might be no harm as Chiltern Railways contended, and one purpose of the condition was to test whether that prediction turned out to be correct. Another purpose was to deal with what should happen were that to prove optimistic; there might be some harm, which was the unlikely possibility which the Inspector accepted had to be dealt with, as a matter of precaution. I say "unlikely" in the light of his conclusions on the SSSIs. The data used to predict NOx emissions permitted the Inspector to understand the extent of the uncertainty; it was not suggested that the model or data were significantly flawed. Mr Richards' argument takes the comment of Natural England that the current data left room for uncertainty out of its context; the condition was to deal with the limited possible effect of the limited uncertainty. Natural England gave evidence, which the Inspector accepted, that if Chiltern Railways were wrong, and there were an increase in NOx deposition to the level at which it could cause harm to the SAC, mitigation measures, including by management techniques within the SAC, could be devised and put in place to eliminate the harm.
51. The purpose therefore of the condition, in the light of that conclusion, is to assess and then eliminate the effects of the residual range of uncertainty between no harm and harm which is "unlikely". The uncertainty in the predictive data could not be eliminated by "baseline assessment"; it required measurement of what happened once the railway was in operation. That was where the uncertainty lay and no better predictions were available. A baseline assessment of itself would have revealed nothing to assist, and an "appropriate assessment", of its nature, would not provide data from the railway in operation. It could not advance the state of knowledge.
52. A precise NOx baseline was necessary to have a level against which changes in NOx levels could be measured once the railway was in operation, and against which the proportion of those changes attributable to the railway could be measured for harmfulness, and to mitigate which measures previously identified under the scheme could be put in place. The reason for this is not because of ignorance about the condition of the SAC. In order to eliminate the uncertainty between no harm and "unlikely harm", the condition includes a scheme for monitoring actual NOx depositions from road and rail traffic which might be attributable to the railway project, then predicting those effects for ten years after the opening of the railway project, and a means of working out how much of the actual NOx depositions on the site are properly attributable to the railway project, (because it is that part which needs to be remedied or mitigated by the implementation of the scheme approved under this condition). There was also a scheme for a baseline survey and evaluation of the lowland hay habitat in the three SSSIs, and provision for future surveys if necessary, after the railway has opened, for the attribution properly to be made. Paragraph (vi) requires the scheme to provide the basis for determining what level of NOx from the opening of the railway project protects the SAC from harm. The scheme also has to provide for what is to happen by way of mitigation if those levels are exceeded, paragraph (vii), and how those management measures are to be implemented; paragraph (viii). The range of possible management measures includes depasturing any affected areas so as to reduce the NOx from cattle.
53. Of course, if there were uncertainty on the objective evidence about whether significant harm would be eliminated by the measures available following monitoring as set out in the condition, the requirements of the Habitats Directive, that the risk of a significant effect be excluded on the basis of objective information, could not be satisfied. Development consent could not be granted. If the appropriate assessment of its nature would not eliminate that risk, the development could only proceed because of considerations of overriding public interest. But if the position is that the Secretary of State lawfully concludes that the condition would exclude that risk on the basis of objective information, it is difficult to see on what basis an appropriate assessment could still be required. Such an assessment would not inform him anyway on the resolution of the uncertainty, since that required monitoring of the actual effect of the development. Equally it is difficult to see why considerations of overriding public interest would have to be found, since the Secretary of State would have ascertained that there would be no adverse effect on the integrity of the SAC in the light of the conditions subject to which authorisation was given. Mr Richards was unable to explain why that might be unlawful.
54. Mr Richards disavowed any attack on the judgment of the Secretary of State that Condition 31 would be effective to ensure that the project was not likely to have significant effects on the SAC. His attack focused on the terms of the condition as showing that an appropriate assessment was necessary. But that fails if the condition was rationally imposed on the basis that it would eliminate the risk of harm. Mr Richards sought support from Gillespie, which in my judgment is not there.
55. The legal principle which Pill and Laws LJ saw as infringed in Gillespie may or may not be the one described by Arden LJ. Submissions from Counsel before me put the principle firmly as rationality, or a need for evidence on which to base conclusions. Arden LJ expressed the point this way: the actions required by a condition, in Gillespie the site remediation measures, might themselves have a significant adverse effect which could not be ignored on the basis that they were removing some other adverse effect; they too required to be included in the screening process, and if necessary, then assessed for likely significant adverse effects themselves before project consent was granted. There could be no assumption that a remediation measure of itself was incapable of having an adverse effect. The other judgments are certainly consistent with that. Pill LJ concludes, as I read his judgment, that the Secretary of State may or may not be entitled to decide, in any given case, that remediation measures are unlikely to have a significant effect. He judged that the Secretary of State had made an assumption, or reached a conclusion which was not justified by evidence, that the nature of the measures in that case were such that no significant effect from them was likely. When Laws LJ says that remedial measures, the nature, availability and effectiveness of which are plainly established and uncontroversial, do not call for EIA, that is obviously because he treats those measures as therefore being known not to have any significant effect. "Uncontroversial" must be understood in that sense. The illegitimate surrogacy of the condition for the necessary assessment arose because the screening or assessment process in relation to the effects of the condition itself was bypassed or ignored.
56. The Inspector and Secretary of State directed themselves correctly as to the requirements of the Habitats Directive and CHS Regulations. They had evidence on the condition of the SAC, and predictive data which entitled them to conclude that no significant adverse effect was likely. They accepted the evidence of Natural England that a condition was nonetheless required to deal with uncertainty, and its evidence that Condition 31 would indeed deal with it. Natural England gave evidence that there was no reason to believe that management measures, including varying the grazing area, would not work. It described these measures as tried and tested, and its confidence that they would be implemented. The Inspector also had the evidence called on behalf of Chiltern Railways, which although not agreeing with the existence of a possibility of risk, had two effects: it supported the evidence of Natural England as to the efficacy of the condition; it also limited the range of uncertainty, since it was not seen as flawed so much as not eliminating uncertainty.
57. So, applying Gillespie, this was a case in which there was evidence that the uncertainty would be overcome, and harm would be avoided by the use of well tried techniques. These management techniques are obviously not such as to cause significant effects themselves. No one suggested that they could, nor is that judgment itself impugned. Natural England's evidence was that these known techniques would eliminate any NOx harm. So the actual basis for the decision in Gillespie is not applicable here. Nor is it said that there was doubt over the ability of Natural England to use its powers to introduce the management measures required to deal with any harmful NOx depositions attributable to the railway. Natural England has powers under the Wildlife and Countryside Act 1981 to require the owners and occupiers of SSSIs to implement the changes in land management which might be required to give effect to Condition 31, a point not in issue before the Inspector or me. No one suggested that Natural England would not use those powers if the operation of the scheme of further assessment showed that to be necessary. Nor is it said that Secretary of State was not entitled to conclude that the objective evidence showed that the measures would be effective. Natural England gave evidence that the condition meant that the possibility of significant effects could be ruled out. That evidence was accepted by the Secretary of State, as he was entitled to do. On that basis, the Secretary of State was entitled to take account of the condition and to conclude that no appropriate assessment was required.
58. This application is dismissed.