IN THE HIGH COURT OF JUSTICE CO/1651/2000
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2
Wednesday, 11th October 2000
B e f o r e:
MR DUNCAN OUSELEY QC
(Sitting as a Deputy Judge of the High Court Queen's Bench Division)
- - - - - - -
(1) SECRETARY OF STATE FOR THE ENVIRONMENT,
TRANSPORT and the REGIONS
(2) BERKELEY HOMES LIMITED
(3) LONDON BOROUGH of RICHMOND UPON THAMES
- - - - - - -
(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - -
MR R HARWOOD (instructed by Richard Buxton, Cambridge, CB1 1JX) appeared on behalf of the Claimant.
MR J MAURICI and MISS C PATRICI (for judgment) (instructed by the Treasury Solicitors) appeared on behalf of the First Respondent.
MR A DINKIN QC and MR R GROUND (instructed by GCL Solicitors, Guildford, GU1 3DA) appeared on behalf of the Second Respondent.
- - - - - - -
J U D G M E N T
Wednesday, 11th October 2000
1. THE DEPUTY JUDGE: In April 1999 the Secretary of State for the Environment, Transport and the Regions dismissed appeals against the London Borough of Richmond's failure to determine applications for two schemes - one, a residential scheme and, the other, a mixed residential and other use scheme - on land at 77 Mortlake High Street, Mortlake, which lies beside the Thames towpath on the southern side.
2. The Secretary of State dismissed those appeals because, as he says in paragraph 9 of that decision letter:
"On the remaining considerations, the Secretary of State agrees with the Inspector that there are material design objections to both appeals that can be regarded as 'over-development' (IR 8.12). In addition, he accepts the Inspector's recommendation that the appeals will not preserve the character and appearance of the Conservation Area, would cause demonstrable harm to the view from Dukes' Meadow and Chiswick Bridge and to the setting of St Mary's Church, a Grade II* listed building, (IR 8.12 - IR 8.13)."
3. In paragraph 10 of his decision letter the Secretary of State agreed with the Inspector's conclusions in his report (paragraphs 8.1 to 8.16) which include the view at paragraph 8.3 that:
"... both appeal schemes do, in fact, represent overdevelopment of what I have characterised above as a small site in an environmentally sensitive location (8.2), although not one which necessitates an Environmental Assessment."
4. Berkeley Homes West London Limited, the Second Respondent, submitted revised schemes in order to overcome those objections. Again, one was for an exclusively residential development and the other for a residential and B1 office space mixed development. The London Borough of Richmond failed to determine the former and refused the latter. Berkeley Homes' appeal was successful. Following a public local Inquiry the Inspector granted permission for both schemes.
5. The Claimant, Lady Dido Berkeley, appeared as a third party objector at the Inquiry on behalf of ThamesBank, an organisation (of which she is co-ordinator) promoting the sustainable regeneration of the River Thames corridor. She gave evidence at the Inquiry, and made submissions at the Inquiry about the need for an environmental statement. She challenges the grant of planning permission under section 288 of the Town and Country Planning Act 1990 on the grounds briefly that, first, the Inspector erred in failing to refer the proposal to the Secretary of State for him to determine whether to direct that an environmental statement be produced; secondly, that he ignored or failed adequately to deal with her submissions on various relevant policies; thirdly, that he ignored or failed adequately to deal with the previous decision letter, including failing to deal with the impact on the views from metropolitan open land, notably from Dukes' Meadow, which lies opposite the appeal site.
6. I shall first deal with the environmental statement point. The claimant raised this point at the Inquiry for the first time and without notice. She asked the Inspector to make an independent and informed decision on this issue (see page 65 of the bundle), and in the final part of her evidence (at page 76 of the bundle) she stated that the Secretary of State must make a decision as to whether an environmental statement was required. Her submissions were couched by reference to the Town and Country Planning (Assessment of Environmental Effect) Regulations 1988 and Circular 15/88. The final part of her evidence, was provided late on the second and last day of the Inquiry.
7. Both counsel for the London Borough of Richmond, Miss Alice Robinson, and for Berkeley Homes, Mr Ground, submitted to the Inspector that the relevant regulations for this appeal were not the 1988 Regulations but the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 Statutory Instrument 293, with new Department of the Environment, Transport and the Regions guidance being contained in Circular 2/99. These regulations, implementing an amendment to the Directive on Environmental Assessment 85/337/EC made by Directive 97/11, were different from the 1988 Regulations in the approach they contained to the determination of whether development required an Environmental Impact Assessment, introducing threshold criteria, including sensitive areas, in lieu of the single test of whether development was likely to have significant environmental effects. It is accepted that it is the amended Directive and the 1999 Regulations which apply, and not the 1988 Regulations which were the basis upon which the claimant made her submissions to the Inquiry.
8. It is necessary to set out the legislative provisions before dealing with the Inspector's approach. First, the Directive as amended. Article 2(1) provides:
"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4."
9. Article 4 provides:
"(1) Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
(2) Subject to Article 2(3), projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination, or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
(3) When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account."
10. We are not concerned with Annex I projects. The only possible type of project which the appeal proposals could constitute is that contained in Annex II paragraph 10(b), an urban development project. Annex III sets out selection criteria by reference to the characteristics of the project, the location (including the environmental sensitivity of the geographical areas likely to be affected by the project) and the characteristics of the potential impact.
11. I move from the European Directive to the United Kingdom Regulations. The 1999 England and Wales Regulations are made under section 2(2) of the European Communities Act 1971 and under section 71(A) of the Town and Country Planning Act 1990. Regulation 3(2) provides:
"The relevant planning authority or the Secretary of State or an Inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so."
12. Regulation 30 provides for the consequences of failure. It provides:
"For the purposes of Part XII of the Act (the validity of certain decisions), the reference in section 288 to action of the Secretary of State which is not within the powers of the Act shall be taken to extend to a grant of planning permission by the Secretary of State in contravention of regulations 3 or 25(1)."
13. Accordingly, a breach of the provisions of Regulation 3(2) would lead to a decision which was ultra vires by virtue of Regulation 30.
14. By virtue of Regulation 3(1), regulation 3(2) applies to "every EIA application". An "EIA application" is defined in the 1999 Regulations, Regulation 2, as meaning "an application for planning permission for EIA development". Again, by Regulation 2, "EIA development" means "development which is either Schedule 1 development or, (b), Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size, or location." "Schedule 2 development" is defined in Regulation 2.
15. Schedule 1 development is the equivalent of Article 1 development within the European Directive and we are not concerned with it. As defined by Regulation 2, Schedule 2 development means development which is set out in Schedule 2 but which also meets the criteria set out beside it in Schedule 2 or is in a "sensitive area" as defined in the Regulations, Regulation 2. Schedule 2 contains the equivalent of the Directive's Annex II list of projects and, again, the only possible one which could apply to this proposal is item 10(b) in Schedule 2 which is described as "urban development projects including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas."
16. It was not conceded by either respondent to the Inspector that the phrase "urban development project" applied to this proposal.
17. The criterion, or threshold, applied in relation to a project of that sort is that the area of development should exceed 0.5 hectares for it to be a Schedule 2 development at all. As an alternative, development of that description which is within a sensitive area would also be Schedule 2 development. For Schedule 2 development to be ETA development, that is to say development for which an environmental statement is required, it must be, in addition to meeting the criteria or thresholds, development likely to have significant effects on the environment.
18. There is no dispute here but that the proposal was below the 0.5 hectare size threshold and was not in any of the sensitive areas as defined in the Regulations.
19. Accordingly, it was said both by the Inspector and by Mr Maurici for the Secretary of State that because the proposal was not within a sensitive area, and because it fell below the threshold of 0.5 hectares, it was not Schedule 2 development. Accordingly, the further question of whether it might be EIA development likely to have a significant effect never arose. That would only arise as a further requirement to be satisfied if the proposal passed the threshold or criterion test so as to be Schedule 2 development in the first place.
20. Mr Harwood, for the claimant, submitted that that was not the end of the position because of two further provisions. First, Regulation 4(8) provides:
"The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of 'Schedule 2 development' is satisfied in relation to that development."
21. So it is recognised, he says, that even if a proposal does not meet or exceed the threshold or criteria and is not in a sensitive area, it could still have a significant effect and the Secretary of State can in effect, in directing that it be EIA development, require the EIA process to be instituted and proceeded with.
22. The second provision which is relevant, to which Mr Harwood draws attention to Regulations 9(1) and 9(2). These are relevant to the way in which the Secretary of State or the Inspector on appeal should deal with issues raised about whether an environmental statement is required. I now propose to set them out. Regulation 9(1) provides:
"Where on consideration of an appeal under section 78 (right to appeal against planning decisions and failure to take such decisions) it appears to the Secretary of State that-
(a) the relevant application is a Schedule 1 application or Schedule 2 application; and
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the relevant application is not accompanied by a statement referred to by the appellant as an environmental statement for the purposes of these Regulations,
paragraph (3) and (4) of regulation 6 shall apply as if the appeal were a request made by the appellant pursuant to regulation 5(6).
9(2). Where an inspector is dealing with an appeal and a question arises as to whether the relevant application is an EIA application and it appears to the inspector that it may be such an application, the inspector shall refer that question to the Secretary of State and shall not determine the appeal, except by refusing planning permission, before he receives a screening direction."
23. I now turn to the way in which the Inspector dealt with the issue, bearing in mind that the claimant did not couch her arguments in terms of the 1999 Regulations and no request was made by her to the Secretary of State at any stage for him to exercise his powers under Regulation 4(8). The Inspector said in paragraph 5 of the decision letter:
"At the inquiry an interested person submitted that an Environmental Impact Assessment (EIA) should be required in these cases. Both main parties agreed that an EIA was not necessary and a screening opinion had been thought unnecessary because the development did not fall within a description in either Schedule 1 or 2. Both appeals fall to be considered under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (EIAR). Although neither proposal falls within a description in Schedule 1 of the EIAR, both could be considered to be infrastructure projects as described in Schedule 2. However, the site area of approximately 0.19 hectare falls well below the threshold of 0.5 hectare given in the EIAR, and both schemes fall below the indicative thresholds set out in Annex A to DETR Circular 2/99. Moreover, whilst it was maintained that the site is sensitive, little evidence was submitted to contradict the Council's questionnaire, which specifically states that the site is not within a sensitive area as defined in Regulation 2 of the EIAR. I do not, therefore, consider that an Environmental Impact Assessment is necessary. Indeed, I note that a similar submission was made at an earlier inquiry relating to the appeal site. The applications in those appeals fell to be considered under the 1988 Regulations but the Secretary of State did not disagree with the Inspector's view that an Environmental Assessment was not necessary."
24. The reference at the end of paragraph 5 of the decision letter is a reference to the Secretary of State's agreement in the 1999 decision letter with the Inspector's conclusions at paragraph 8.3 to which I have already referred. At paragraph 7.5 in the Inspector's report relating to the 1999 appeal the submissions of Lady Dido Berkeley are referred to. She expressed concern about the lack of environmental assessment. This was dealt with under the 1988 Regulations where the test applied was whether the proposal was an urban development project likely to have significant environmental effects. As I have already noted, her submission that the then proposal was likely to have significant environmental effects, was rejected by the Inspector in the 1999 report and his rejection of it was accepted by the Secretary of State.
25. I should also refer to the Circular. Circular 2/99 in paragraph 77(b) deals with Regulation 4(8). It is at page 129 of the bundle and it is in these terms:
"Local planning authorities may, exceptionally, draw the Secretary of State's attention to a particular development which, although listed in Schedule 2 does not constitute a Schedule 2 development for the purposes of the Regulations. The Secretary of State has powers to direct that such development is EIA development (regulation 4(8))."
26. The Circular also discusses those Schedule 2 developments likely to have a significant effect. In the annex to the Circular, paragraph A18 deals with urban development projects in these terms:
"In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination."
27. Paragraph A19 says:
"Development proposed for sites which have not previously been intensively developed are more likely to require EIA if:
the site area of the scheme is more than 5 hectares; or
it would provide a total of more than 10,000sq m of new commercial floorspace, or
the development would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings)."
28. The Circular references are set out on page 130 to 131 of the bundle so far as the annex is concerned.
29. Having set out the statutory background, the way in which the Inspector approached matters and the Circular, I turn now to the submissions which Mr Harwood, for the claimant, made. In his interesting and able submissions he developed his attack upon the Inspector's approach in this way. He submitted that the Secretary of State should have considered whether to make a direction under Regulation 4(8) and he submitted that the Inspector should have considered under Regulation 9(2) whether the Secretary of State might consider exercising his powers under Regulation 4(8) to make a direction.
30. He submitted that it was thus necessary for the Inspector under Regulation 9(2) to take into account the powers that the Secretary of State had under Regulation 4(8) in asking whether it appeared to the Inspector that it might be an EIA application. The definition, said Mr Harwood, of an EIA application in Regulation 2 should be seen as incomplete for the purposes of Regulation 9. For these purposes it was to be supplemented by taking account of those proposals or projects which were the subject of a Regulation 4(8) direction. Accordingly, it was necessary for the Inspector to consider whether the Secretary of State might wish to exercise his Regulation 4(8) discretion for the purposes of the Inspector's powers under Regulation 9(2).
31. Moreover, submitted Mr Harwood, the Regulations had to be interpreted so as to give effect to the purpose of the Directive from which they sprang. Article 2 of the Directive's purpose was to ensure that projects likely to have significant effects were subject to environmental assessment before consent was granted. It was necessary therefore to interpret Regulation 9(2) in that way, so as to avoid projects which were not in a sensitive area, and were below the threshold and other criteria, slipping through the net. It would be a breach of the Secretary of State's and the Inspector's duty to consider whether environmental assessment was required, if projects which could have such significant effects were not considered for environmental assessment. Reliance was placed on Berkeley v Secretary of State for Environment, Transport and the Regions  Vol. 3 WLR 420, in particular at pages 429D to 430A per Lord Hoffmann.
32. I do not accept these submissions, largely preferring instead those from Mr Maurici on behalf of the Secretary of State, and Mr Dinkin for the second respondent. First of all, if the Regulations are interpreted without any European Directive overlay the position, in my judgment, is clear. An EIA application within Regulation 9(2) is a reference to Environmental Impact Assessment applications as defined in Regulation 2; that which by direction under Regulation 4(8) may become an EIA application is not included in Regulation 2, nor in Regulation 9(2). The possibility of a Regulation 4(8) direction has no relevance under Regulation 9(2) or Regulation 2. The application was not EIA development as defined. So if, as here, no direction has been made at the time when the question arises under Regulation 9(2) for the Inspector, the application cannot be an EIA application. The present tense in regulation 9(2) is clear as to its import. It cannot be an EIA application simply because the Secretary of State, if appraised of it, might make it one.
33. It is insufficient to say that a project merely might become an EIA project if the matter were drawn to the Secretary of State's attention and he so concluded. Regulation 4(8) does not contain a power available to the Inspector nor, indeed, to local planning authorities. If of course a direction has been made, Regulation 9(2) still does not arise because it will be an EIA application by that stage, and there will be no need for the Inspector to consider the matter.
34. In my judgment, this approach makes sense of what it is right to see as an exceptional power exercised only by the Secretary of State on application to him directly in relation to a specific matter. Accordingly, in the absence of a direction being made it was not open to the Inspector to treat the application as an EIA application because the thresholds and criteria were not exceeded or met. The Inspector's approach on that basis is impeccable.
35. Secondly, however, if one interprets the 1999 Regulations in the context of the European Directive, in my judgment the answer remains the same for these reasons. The Directive, in Article 2, requires all measures necessary to be taken to ensure that projects likely to have significant effects are subject to assessment, and those are defined in Article 4 as the end of Article 2 makes clear. Article 2 treats as defined for Article 2 purposes to which the obligations in Article 2 attach, those projects which pursuant to Article 4 fall within the thresholds or criteria, or are covered by a case-by-case examination, or both, according to the choice of the Member States. Accordingly, it is the application of the threshold criteria and case-by-case examination as contained in the Member States' Regulations that defines through Article 4 which projects are projects for the purposes of Article 2.
36. The obligation in Article 2 is satisfied by a process of case-by-case examination, or thresholds or criteria, or both pursuant to Article 4. It follows that thresholds and criteria, which do not just simply apply directly the test of whether a project is likely to have significant effects, satisfy the purpose and obligation contained within Article 2, provided of course that the Member States' thresholds and criteria do not themselves run counter to the purpose of the Directive. Yet it is inherent in the ability to apply thresholds and criteria that there will be potentially some projects which fall below the thresholds and criteria but yet may be likely to have significant environmental effects.
37. Accordingly, the very existence of thresholds and criteria means that the European Directive recognises the potential lawfully to exist for projects to fall below them, which nonetheless are likely to have significant environmental effects, and yet not to be assessed. It would wholly undermine the role of thresholds and criteria, including the definition of sensitive areas, if in addition to the thresholds and criteria all applications, whether on appeal or otherwise, had to be considered against the single test of whether they were likely to have significant environmental effects. Indeed, it is difficult to see what purpose in that context the existence of thresholds or criteria could possibly have.
38. It is not suggested, rightly in my judgment, by Mr Harwood that the thresholds and criteria, including the sensitive areas, contained in the domestic regulations are unlawful, i.e. that they run counter to the purpose of the Directive. Nor is it suggested that the provision for a case-by-case analysis of projects that exceed the thresholds or criteria is unlawful. Mr Harwood does not suggest that the Regulations are unlawful in transposition in failing to provide a requirement on local planning authorities to analyse EIA development both by reference to the criteria and thresholds and, even if they fall below them, then to analyse them again by whether they are likely to have a significant environmental effect. He suggests that it is lawful for the Regulations to be structured in the way in which they are structured and that the purpose of thresholds and criteria was for demarcation purposes between local and central Government powers, with only the latter able to deal with the significant effects of projects which fell below the thresholds and criteria set out in the Regulations.
39. Regulation 4(8), in my judgment, is not required at all for the adequate transposition of the European Directive, in view of the fact that a Member State can choose to use thresholds and criteria alone. It is, however, clearly permissible under the European Directive to have a combination of case-by-case examination, and thresholds and criteria. It is clearly not counter to the purpose of the European Directive for Regulation 4(8) to exist. Indeed, the United Kingdom applies both case-by-case examination and threshold and criteria analysis within Regulation 2, because it applies a significance test to projects which exceed the thresholds.
40. Accordingly, I take the view, contrary to the submissions of Mr Maurici, that Regulation 4(8) is not purely a domestic add on. It is not required but it is permitted instead by the European Directive and it should be seen and construed as part of the United Kingdom's implementation of the Directive.
41. I say that for three reasons. First, Regulation 4(8) simply reflects for those proposals that fall below the thresholds and criteria an additional application of the case-by-case examination process which the European Directive expressly permits. Secondly, whilst section 71(A) of the 1990 Act is an empowering provision in relation to the 1999 Regulations, I do not find in section 71(A)(2) subsection (a) or (b), any relevant separate regulation-making power. Either the regulations are made under section 71(A)(2a), in which case they are there for the purposes of implementing the Environmental Assessment Directive, or they are there for making, under (b), different provision for different classes of case. But this situation does not fall into that latter category. My third reason is that the selection itself of the thresholds and criteria may be affected by the existence of the Regulation 4(8) power.
42. However, it is my judgment that the obligation and purpose of the European Directive is satisfied by the way in which the Regulations have been implemented. Thresholds and criteria, including provision for sensitive areas, are supplemented by a case-by-case analysis. Thresholds and criteria, whilst themselves capable of being sufficient, have been added to by Regulation 4(8) in case something which fell below or outside the thresholds and criteria, but which is likely to have a significant environmental effect, is specifically identified and drawn to the Secretary of State's attention. A procedure for considering that is given. It can be invoked by local planning authorities or third parties communicating with the Secretary of State. Indeed, the Secretary of State can take a view without there having been a request specifically made to him.
43. However, it must be recognised that it would be unusual for a case to arise which fell below the thresholds and criteria in which the Secretary of State would conclude that it was likely to have significant environmental effect, and in which it would be then incumbent upon him to require an environmental impact assessment. Indeed, in my judgment, even if he were to conclude that it was likely to have a significant environmental effect, it would not be required for the proper application of the European Directive and Regulations for him to issue a direction that the project was EIA.
44. I do not consider that the limited and exceptional power that has been given only to the Secretary of State, and not to Inspectors or to local planning authorities, involves any inadequacy of transposition. It has not been contended that the transposition was unlawful because there was no obligation on local planning authorities to consider whether an application involved a significant environmental effect even though it fell below the thresholds and criteria. Yet that would be the logical conclusion of Mr Harwood's argument that Regulation 9(2) should be interpreted as requiring an Inspector to consider how a Secretary of State would judge development falling below the thresholds and criteria. It is a particular procedure for what, by its very nature, are likely to be exceptional cases. As I say, it is permitted but not required by the European Directive that certain cases falling below the thresholds and criteria be subject to a case by case examination and, even if some safety net were required, this would be an adequate provision enabling the Secretary of State to consider matters but not enabling anyone else to do so.
45. Accordingly regulation 4(8), an adjunct to the thresholds and criteria, can be given effect in the narrow and circumscribed terms in which it is expressed. The Directive's purpose does not require Regulation 9(2) or Regulation 4(8) to be given broader meanings which in effect would reimpose the single test of whether a project was likely to have significant environmental effects and thereby undermine one of the chief objectives of the amendment to the Directive which introduced thresholds and criteria instead of such a single test.
46. To enlarge Regulation 9(2) or Regulation 4(8) so as to create some general obligation to consider the likely significant effects of projects which fell below the thresholds and criteria would undermine not merely the purpose of the Regulations but, in my judgment, would run counter to the purpose of Article 2 of the Directive itself, depriving thresholds and criteria of any substantial effect. The Directive does not require that projects falling below the thresholds and criteria be subject to a significance test. Accordingly, an additional permitted check can be narrowly circumscribed.
47. In my judgment, therefore, the European Directive does not assist Mr Harwood in his argument. Regulation 9(2) does not require an Inspector to judge whether the Secretary of State might exercise Regulation 4(8) powers in order to give proper effect to the European Directive. Accordingly, I reject the challenge on that ground.
48. I do not consider either that there is any separate obligation, either under the domestic Regulations or by reference to the European Directive, on the Secretary of State directly to consider each appeal being dealt with by an Inspector for the purposes of considering whether he wishes to make a direction under Regulation 4(8). The matter has to come before his notice in some way or other before any particular failure to consider the exercise of his power can be raised as a matter of complaint. No such application was made to the Secretary of State. The distinction between the Secretary of State and the Inspector in Regulations 9(1) and (2) precludes the Inspector being treated as exercising the Secretary of State's powers under Regulation 4(8) directly, and the contrary is not suggested.
49. I should add that I am entirely satisfied that if the Inspector, contrary to my judgment, had a power or duty to consider whether the Secretary of State might have exercised his discretion and made a Regulation 4(8) direction, the Inspector would have been bound to conclude that the Secretary of State would not exercise his discretion in that way and the Inspector would have been bound, in those circumstances, not to refer the matter to him.
50. The issue of whether an earlier development would have required environmental impact assessment, when the only test then applicable was whether it was likely to have significant environmental effects, was considered by the Inspector and the Secretary of State in the context of this claimant's submissions on an earlier appeal. It was concluded that that earlier project would not be likely to have significant environmental effects.
51. The question of whether this development would be likely to have significant effects would be considered by this Inspector, in the circumstances in which the issue arose, not on a preliminary basis as is usually the case but after a full analysis of the evidence and after his site visit. He would know that this proposal being granted permission as one eliminating an objection that led to refusal last time would be even less likely to have a significant environmental effect than the previous appeal. Paragraph 5 of his decision letter, in the last sentence, shows the Inspector's awareness of that point.
52. In those circumstances, where in the exercise of the power or the fulfilment of the duty to consider whether the Secretary of State might wish to make a Direction under Regulation 4(8), as on Mr Harwood's interpretation of Regulation 9(2) would be involved, the Inspector could come to only one conclusion i.e. that there would be no reference to the Secretary of State and no environmental impact assessment, because the Secretary of State would inevitably conclude that he did not wish to make a Direction under Regulation 4(8). It would be pointless to quash the decision and I would have exercised my discretion against the granting of relief.
53. I remind myself of what Lord Bingham said in Berkeley v Secretary of State for the Environment (to which I have already referred) at page 423F and what Lord Hoffman said in that same case at page 431E to H and 433A to B. What Lord Bingham said was this:
"Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on Member States by Article 10 of the EC Treaty, the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by Article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the Regulations in the case of any urban development project which in his opinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all point towards an order to quash as the proper response to a contravention such as admittedly occurred in this case."
54. Lord Hoffman said:
"Although section 288(5)(b), in providing that the court 'may' quash an ultra vires planning permission, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under Article 10 (ex Article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment  61 P&CR 343, 353. Mr Elvin was in my opinion right to concede that nothing less than substantial compliance with the Directive could enable the planning permission in this case to be upheld."
55. But at 433 he said:
"I would accept that if there was a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law. But that is not the case here. The Secretary of State did not comply with his basic obligation to consider whether the UK machinery for implementation of the Directive should be put in motion."
56. However, in my judgment, this would not be a case on the facts as I see them where the process of consideration by the Inspector of his power under Regulation 9(2) could lead to the conclusion that the Secretary of State might issue a direction that Regulation 4(8) applied in circumstances where (as I have also said) Regulation 4(8) is not a requirement of the European Directive but is simply permitted by it as part of the United Kingdom's implementation.
57. In paragraph 5 of the decision letter, last sentence, the Inspector has in effect identified the significance of the previously expressed view of the Secretary of State in circumstances more favourable to the claimant than those with which the claimant is now faced. His only failure, if Mr Harwood is right on his interpretation of the law, is to go through the task of expressing that point in the context of Regulation 9(2). His anticipation of the Secretary of State's view would be quite clear if he had gone through the simple task of expressing the last sentence of paragraph 5 of his decision letter in the context of Regulation 9(2).
58. Whether that failure is seen as going to ultra vires in which case I judge it as wholly negligible, or as going to the procedural aspects because he does not express an obvious conclusion in a particular way, I judge this to be very different from the case of Berkeley v Secretary of State in the House of Lords where the compliance with the obligation could have led to a different process i.e. one of EIA being adopted, and the vice struck at by the House of Lords was the Secretary of State's seeking to set aside the importance of the environmental impact assessment process because of a lack of anticipated effect on the outcome of the decision making process at the inquiry.
59. The last point in relation to environmental impact assessment is this. It was accepted by Mr Harwood that no separate reasons issue arises in relation to the environmental impact assessment point.
60. Mr Harwood's second ground relates to the claimant's evidence on the Government's strategic planning guidance in relation to the River Thames, known as RPG3b/9b. He contends that the Inspector ignored those aspects and failed to give adequate reasons for his conclusions on those matters. Mr Harwood submits that the Inspector did not assess the scheme against various policies in RPG3b/9b or against the London Borough of Richmond's Unitary Development Plan First Review Deposit Draft policy ENV26 dealing with River Thames side sites.
61. He said that in particular there was no design statement, and the precedent effect referred to by the claimant was not dealt with. This, the Collis Radio point referred to in the bundle on page 66, was made in the context of her environmental impact assessment submissions. Her points in relation to RPG3b/9b are set out in the bundle on page 59 to 64 and briefly in the bundle on page 74.
62. I do not accept these submissions. It is first necessary to set out the relevant paragraphs of the decision letter, which are paragraphs 9 and 31 to 34. Paragraph 9 reads:
"UDP Policy ENV1 states that the character, scale and quality of ASCs will be protected. A high standard of design generally is required by UDP Policy ENV 19, which sets out a number of factors to be considered. The DUDP Policy BLT 11 expresses a similar objective. UDP Policy ENV 24 and DUDP Policy BLT 16 indicate that adjoining properties will be protected from, amongst other matters, unreasonable loss of privacy, and visual intrusion. DUDP Policy ENV 26 reflects the advice in Strategic Guidance for the River Thames (RPG3b9b) and seeks to protect and enhance the special character of the Thames Policy Area.
31. The Council, in conjunction with other organisations, commissioned a Study of River Related Industry Sites and is proposing river related policies in the emerging UDP. Whilst emerging UDP Policies pertaining to the river generally reflect the objectives set out in RPG3b9b, they are not yet part of the statutory development plan. However, many of the points listed in paragraph 5.96 of the explanatory text of the DUDP have been considered in reaching my conclusions on the main issues. Neither proposed scheme would lead to the loss of any existing riverside industry, which is the objective of DUDP Policy RIV 8 as set out in paragraph 12.34 of the explanatory text and the subject of the Study of River Related Industry Sites. I do not consider that either proposal would significantly harm any function of the river, nor would there be a loss of any fixed facilities on the riverside, as the site is separated from the river by the public towpath.
32. Whilst these emerging policies refer to mixed development adjacent to the river opening up views and access to the river I do not consider that would be practicable on every site, regardless of its size. I agree with the view of the Inspector who reported on the previous appeals relating to this site that 'the provision of a token element of B1 use is much less important that the achievement of a satisfactory design solution based on residential use'. In any event there is a mix of uses in the surrounding area. Similarly, there are views of, and access to, the river at Bulls Alley and Tapestry Alley short distances to either side of the appeal site. I do not consider that the precautionary principle urged by interested persons in the absence of statutory plan policies relating to the river would outweigh the considerations that have led to my conclusions on the main issues.
33. I accept that high buildings could create a tunnel effect, and in some conditions cause danger to people sailing on the river. However, the proposals would not lead to such a situation. There are gaps between the buildings on the south bank, and the north bank is effectively open. I confirm that I have not been influenced by the extant planning permission for a petrol filling station on the site, in which only the car wash would be subject to a restriction on hours of operation. I note that some interested persons would prefer the garage, particularly if it included a shop. However, the Council accepts that on design grounds both proposals would be better for the High Street than a garage. I do not consider that other recent development in the area forms a precedent for the proposals or that the cumulative effect of either proposal together with recent development on neighbouring sites would have an overwhelming effect on the Conservation Area. I have considered the appeal proposals on their own planning merits.
34. I have considered all other matters raised at the inquiry and in writing, including petitions instigated in two local shops by an interested person. However, none is sufficient to outweigh the considerations that have led to my conclusions on the two main issues."
63. From this it is clear that the Inspector has policy ENV 26 and RPG3b/9b in mind as relevant policies. Those two documents cover much the same ground and dealing with one as he does later than paragraph 9 deals with the substance of the other. Paragraph 31 deals with the assertion that there had been no assessment of the critical number of sites, passenger and recreational facilities and river related facilities for this area of river, and that there had been no evaluation of the availability of and potential demand for such facilities to meet present and future needs. This is a reference to paragraph 3.65 of RPG3b/9b. Paragraph 3.65 of RPG3b/9b is couched in terms, however, of preventing the loss of existing facilities, which would not arise in this case.
64. Whilst there was no specific analysis of whether this site was a place of quiet and tranquil enjoyment -- a further point raised by the claimant -- in view of the lack of analysis of that aspect in her evidence, together with the detailed appraisal of the effect of the proposals on the conservation area, I do not consider that there was any remaining point on that aspect requiring any more elaborate treatment than was provided in paragraph 34 of the decision letter.
65. The claimant also complains under the heading of ENV 26 and RPG3b/9b that the balance of uses was not considered. The balance of uses is specifically considered in paragraph 32 and the Inspector specifically rejects the view that the absence of statutory plan policies for the river should lead to the application of the precautionary principle in the way in which the claimant urged, i.e. refusing planning permission, because he considered there were other outweighing considerations.
66. The complaint about the absence of consideration of a design statement derives from policy ENV 26 which states (on page 132 in the bundle):
"The Council will seek to protect and enhance the special character of the Thames Policy Area [TPA] whose boundaries are indicated on the Proposals Map, by
(G) requiring design statements from developers for all significant developments in the [Thames Policy Area]."
67. In paragraph 5.96 it says:
"Design statements required from developers, should contain the following information: ..."
68. Then it sets out a variety of detailed matters as follows:
"(a) an assessment of scale, mass, height, silhouette, density, layout, materials and colour in relation to:
(1) the local context, ...
(2) impacts on local and strategic views, ...
(3) the skyline; and
(4) local landmarks and historic buildings and structures."
69. It should also contain:
"(b) proposals for:
(1) river edge treatment
(2) visual and physical permeability and links with the River's hinterland;
(3) protecting and enhancing public access to and along the river
(4) landscaping, open spaces and street furniture; and
70. However, those matters are carefully considered throughout paragraphs 11 to 20 of the decision letter. There is no need to set them out in the context of the requirements of a Design statement.
71. Given the identification of the first main issue as the effect on the character and appearance of the Mortlake Conservation Area and on the setting of the listed St Mary's Church, in the context of appeals in which the success or otherwise of the applicant in overcoming design objections previously identified was the real focus of debate, it is scarcely surprising that there is a detailed consideration of the substance of the points that one would expect from such a design statement. The Inspector deals, in my judgment, with the issues that a design statement would give rise to.
72. The precedent and cumulative effect was considered in the decision letter at paragraph 33. True it is that it is not considered in terms of any precedent effect which this proposal itself might have, whereas the point made by the claimant in evidence related to both the prospect of a precedent effect which the proposal itself might bring and the effect of this proposal with recent development.
73. However, it needs to be remembered that that point was made in the context of environmental impact assessment and the claimant's arguments as to why it was required, rather than something which went directly to the planning merits. Insofar as there is an aspect of the precedent argument that is not dealt with in paragraph 33 of the decision letter, I am satisfied that it is a sufficiently small point that was raised on the planning merits by the claimant for paragraph 34 sufficiently to cover it. I do not accept that it was an important principal controversial issue for the claimant, outside the argument that she raised in relation to environmental impact assessment. It was not ignored. It has been adequately dealt with.
74. Mr Harwood's third ground relates to the way in which the Inspector dealt with the previous appeal decision, Dukes' Meadow and metropolitan open land. He submits that the Inspector ought to have regarded the 1999 decision letter as sufficiently closely related to this appeal to warrant it being followed or distinguished. He relied upon R v Secretary of State for the Environment, Transport and the Regions ex parte Baber  JPL 1034, and in particular at 1040. He said the Inspector referred to the previous decision letter on only three points.
75. I reject this approach entirely. The Inspector's whole decision letter is an analysis of a scheme designed to overcome the design objections that were raised in the previous Inspector's report. These included Conversation Area and listed building objections. Each conclusion that this Inspector reaches in paragraphs 11 to 20 is in effect the reason why the conclusion of the last Inspector on design does not apply to this scheme. It would be otiose to analyse each precise difference in detail comparing it to the approach in the previous decision letter. Any reading of the two together shows the differences and the reasons for the different conclusions of the Inspectors.
76. So far as the views from Dukes' Meadow and metropolitan open land are concerned, whilst these were a concern to the Inspector on the first appeal, they were again closely related to the design objections which he found to exist. In this appeal, paragraph 6 of the decision letter identifies the area of Duke's Meadow as the opposite area of public open space, and in paragraphs 11 and 12 of the decision letter the Inspector refers to views from Chiswick Bridge and Barnes railway bridge, and he refers to the open land of Duke's Meadow. He also refers in paragraph 12 of the Decision Letter to the Conservation Area seen from the Chiswick bank which is where Duke's Meadow is.
77. Valerie Scott's witness statement for the second respondent in paragraph 29 identifies the extensive site visit of the Inspector which included walking the whole length of the river on the opposite bank to the appeal site. She says, at page 207, in the middle of paragraph 29:
"The Inspector, during his site visit walked along the towpath between the appeal site and the river. He then walked from the appeal site along the High Street to Barnes Railway Bridge. He crossed the railway bridge viewing the site from the bridge and then walked the entire length of the river bank from Barnes Bridge to Chiswick Bridge, stopping several times to view the appeal site from the northern banks of the River Thames and from the open land at Duke's Meadow. He crossed Chiswick Bridge and again stopped to view the site from Chiswick Bridge itself and then he walked along the towpath on the southern bank of the River Thames back to the appeal site. After inspecting the site he then viewed the site from several advantage points along Mortlake High Street and from Mortlake Hall."
78. In the context of this appeal it cannot, in my judgment, be said that he ignored Duke's Meadow and the metropolitan open land. It was specifically dealt with in the way which I have described. It is notable, however, that the claimant did not raise at the Inquiry concerns over the views from Duke's Meadow or metropolitan open land. It was not part of her case. Even if there had been an omission to give adequate reasons dealing with Duke's Meadow and metropolitan open land aspects, which in my judgment is not the case, it is not a principal controversial important issue for the claimant, and I can see no prejudice that could arise from an Inspector not dealing with the point which a claimant had not raised but which had only been raised by others who do not complain to this court.
79. For those reasons and notwithstanding the attractive and interesting arguments of Mr Harwood, this application is dismissed.
80. MS PATRICI: My Lord, I appear in place of Mr Maurici today and I would like to hand up to you a revised statements of costs. I would ask for an order that the Secretary of State's costs be paid by the claimant and assessed on a summary basis.
81. THE DEPUTY JUDGE: Mr Harwood?
82. MR HARWOOD: My Lord, I do not resist that either in principle or in sum.
83. THE DEPUTY JUDGE: The Treasury Solicitor always comes in cheaper.
84. MR HARWOOD: Indeed, my Lord.
85. THE DEPUTY JUDGE: Yes. There will be an order for costs so far as the first defendant is concerned in the sum of £4035. There are no further applications?
86. MR GROUND: My Lord, I too make an application for costs for the second respondent. Your Lordship is obviously familiar with it, but can I just pass up Bolton for convenience. Without labouring the point, in my submission what Bolton says is that if you have a separate interest or a separate issue then one can have a second set of costs where it is obviously not the usual practice. That comes from the second bullet point on page 1178.
87. Put shortly, here the separate issue is that a lot of the factual material that was relevant to your decision, namely the way that 1999 regulations were dealt with and in the latter part of the judgment the site visit, were put before you by the second respondent. The separate interest that the developers had here was a similar separate interest to the one that was found to exist on the facts if the actual Bolton case, and that is that the Secretary of State had a different interest, namely to consider the wider issue, whereas the developers had only the interest of the particular case in mind.
88. Also looking at 1179 of Bolton in the second paragraph, it did not defeat the award of costs that was granted in the House of Lords and all the way below that the issues were all capable of being covered by counsel for the Secretary of State, but nevertheless they awarded costs all the way down the line.
89. I also rely on the third bullet point, or the third point on 1178, which is that a second set of costs is more likely to be awarded in the first instance in the Court of Appeal or the House of Lords. Looking at 1179 and the third paragraph, we see the point that in that case in Bolton where they awarded costs, the Secretary of State was concerned not only for his decision but also to explain and defend his wider policy. That may well have been the case in this appeal.
90. My Lord, it was in the original bundle, but you will be very familiar with the case of Hammersmith and Fulham in the Court of Appeal, where I know there was obviously a larger scheme and developers had wider interests from that point of view and there was an application for adjournment. But it does show -- if you have the bundle with the original transcripts in, it is 12th June at the back -- Ward LJ's comments only run to three sentences so perhaps I shall just read them out:
"Whereas the ordinary rule is that one ... (Reading to the words) ... Those who have lived by the sword must also perish by it."
91. THE DEPUTY JUDGE: I think that was really a very different situation from the one here.
92. MR GROUND: The reason why I seek costs is because there was a separate interest and a separate issue.
93. THE DEPUTY JUDGE: Mr Harwood, for reasons I shall just give briefly I am not going to make a separate award of costs in favour of Mr Ground's clients except on one matter which I wonder whether you just might like to consider. Part of the affidavit of -- or the witness statement -- of Miss Scott was useful, i.e. the factual part as opposed to the skeleton argument part. Would it be appropriate to make a small award of costs in relation to that?
94. MR HARWOOD: As your Lordship says, only a very small part of that witness statement. I see my learned friend's schedule of costs which have a consultant's fees bill of £4000 which appears to relate to Mrs Scott's evidence. My Lord, the factual evidence was really what was said at the inquiry which has not really turned this case either way, and the fact that the Inspector had a long walk around and site visit, which was put pretty much in one paragraph. My Lord, it is a trivial part of the evidence and the cost of putting together the Berkeley Homes evidence.
95. My Lord, I would suggest that given it is such a small part the appropriate order is not to make any order for costs in favour of Berkeley Homes. If your Lordship was minded to make an order, I would be grateful if your Lordship indicated that that useful part of the evidence was very, very minor indeed, especially when it comes to arguing about the size of that consultant's bill.
96. THE DEPUTY JUDGE: Mr Ground, I am not going to make an order for costs in your favour. It is always difficult for a second respondent to show that the fact that they have an entitlement to appear and an interest to protect -- which may not be the same as that which the Secretary of State is seeking to protect -- it is always difficult for the second respondent to bring themselves within the range of factors that are relevant.
97. In the Bolton case, the starting point is that you are not normally entitled to your costs, as you rightly pointed out. There was not an issue that was not covered by counsel for the Secretary of State and although you had an interest which entitled you to separate representation, the nature of the interest in this case was not one which, in my judgment, required separate representation so as to entitle you, if you like, to burden the claimant with the costs of your appearance.
98. The combination of factors which are referred to in the Bolton case as to why in that instant case an award of costs was made in favour of the developer included the very important consideration of a potentially different interest in that when it says the Secretary of State was concerned not only to support his decision but also to explain and defend his wider policy, that has to be seen in the context of the Secretary of State making it very clear that his primary concern was the approach which had been adopted towards the reasoning, and less of a concern about the precise way in which the decision was actually going to go on the merits for the purposes of seeking leave to appeal. So the developer in that case was faced with real uncertainty as to quite how strenuously whoever it was appearing for the Secretary of State was going to argue the corner. As it happened he need not necessarily have worried.
99. Anyway, for those reasons I am not going to make an award of costs generally. I also do not consider it appropriate in view of the relatively small amount of material which although useful is still only a relatively small amount of material to try and dissect the consultant's fees.
100. MR HARWOOD: I am obliged, my Lord. My Lord, I make an application for permission to appeal to the Court of Appeal. My Lord, I make the application --
101. THE DEPUTY JUDGE: Mr Harwood, unless it is opposed I am going to grant it.
102. MR HARWOOD: I am obliged, my Lord.
103. THE DEPUTY JUDGE: Does anybody seek to oppose it?
104. MS ROBINSON: I am instructed to oppose this application -- subject to what your Lordship has to say -- it was merely to say that you have made a clear ruling on both the Regulations and the Directive, and we felt it was not necessary to trouble the Court of Appeal. I am grateful for your indication.
105. THE DEPUTY JUDGE: You are going to say the same, are you?
106. MR GROUND: My Lord, I was going to add in view of the second point that you decided it on, that even if on the legal issue of 4(8) you were wrong on that so to speak, the clear factual circumstances of this case would not merit an environmental statement in any event.
107. THE DEPUTY JUDGE: I understand that point and I would normally grant that, if you like, as a strong argument against the grant of permission. However, I am conscious in this case that not merely is the primary environmental impact assessment issue one in which it is perfectly arguable for Mr Harwood, but the approach to the discretion which I have adopted is one which I can also see someone regarding -- although I obviously regard it as right -- as controversial. So you may have your leave.
108. MR HARWOOD:I am obliged, my Lord.
109. MR GROUND:My Lord, I hesitate to raise one further point, but that is that I attempted to look up in the rules whether you are able to make any observations about expedition of the appeal. My Lord, if you are able to make any observations about expedition, I would say that this is a case for expedition because -- certainly on the case first point, on the Regulation 4(8) point -- it would be very important for further appeals for there to be certainty on this matter of the law reasonably soon. Secondly, it is obviously clearly causing my clients considerable prejudice the longer the matter drags on. I do not know if you are able to make any observations which would assist in expedition?
110. THE DEPUTY JUDGE:I understand, Mr Ground, the point you make in relation to that. This is the commonplace for developers who receive their permission and are still potentially at risk. Is there anything more particular to these circumstances that you want to draw my attention to, or is it the generality which one always finds?
111. MR GROUND:My Lord, it is a more extreme case than the normal one in that it is not at the moment being put to any beneficial use at all. On the first ground, the point of how other applications are to be determined is a different point to the usual developer's point. My Lord, that is all I seek to put before you.
112. THE DEPUTY JUDGE:I do not think I can assist you, Mr Ground. It is obviously desirable for all cases to be heard as soon as they can be. If there is any sign of foot dragging or the case taking an unusually long time to come on, or if the courts' lists are such that you are not able to get on, you will have to make your application to the Court of Appeal, so the Court of Appeal can assess how it stands when compared with the other cases which it has to deal with.