Neutral Citation Number:  EWCA Civ 115
Case No: C1/2012/1387
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
HHJ Mackie QC
 EWHC 1830 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE PATTEN
LORD JUSTICE BEATSON
SIR STANLEY BURNTON
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The Queen on the application of Michael Evans Applicant
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Secretary of State for Communities and Local Government Respondent
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Babergh District Council First Interested Party
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Persimmon Homes Ltd Second Interested Party
David Wolfe QC (instructed by Richard Buxton Environmental and Public Law) and Paul Stookes (of Richard Buxton Environmental and Public Law) for the Applicant
David Forsdick (instructed by the Treasury Solicitor) for the Respondent
The First Interested Party did not appear and was not represented
Meyric Lewis (instructed by Ashton Kcj Solicitors) for the Second Interested Party
Hearing date: 13 February 2013
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Lord Justice Beatson :
1. This is an application by Mr Michael Evans for permission to appeal the order of HHJ Mackie QC dated 31 May 2012 refusing him permission to apply for judicial review of the screening direction of the Secretary of State dated 21 October 2011 pursuant to Regulation 6 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 SI 1999 No. 293 ("the 1999 EIA Regulations"). By an order dated 23 October 2012, Mummery LJ adjourned the application to a full court on a "rolled-up" basis, i.e. with the appeal to be heard immediately after the application if permission is granted. Since then Sullivan LJ has made a protective costs order in favour of the applicant.
2. In his screening direction, the Secretary of State decided that a proposed development by Persimmon Homes (Anglia) Ltd, the interested party, for which planning permission had been sought, was not likely to have significant effects on the environment. It followed that it is not an "EIA development" and is not subject to the additional procedural requirements of such a development.
3. The 1999 EIA Regulations transpose into domestic law the requirements of Council Directive 85/337/EEC ("the EIA Directive") as amended inter alia by Council Directive 2003/35/EC ("the Public Participation Directive"). The EIA Directive was consolidated by 97/11/EC. A development is an EIA development if it either falls within Schedule 1 of the 1999 EIA Regulations or it is a development within Schedule 2 which is "likely to have significant effects on the environment by reason of factors such as its nature, size or location". These proceedings are only concerned with Schedule 2. Where a development is an EIA development, the developer must furnish an environmental statement to ensure that the potential environmental impacts of major development projects are identified at an early stage of the process. Planning permission cannot be granted for EIA development unless the relevant planning authority or the Secretary of State has taken into account the specified environmental information.
4. The applicant submitted that the Secretary of State's approach in making this screening direction erred in not being "precautionary and purposive" and that the deputy judge erred in scrutinising the Secretary of State's decision by applying the Wednesbury test and not some other test. These questions, in particular the second one, have been the subject of a number of decisions of this court, most recently that in R (Loader) v Secretary of State for Communities and Local Government  EWCA Civ 849 in which the judgment of this court was handed down on 29 June 2012.
5. Mr Wolfe QC, on behalf of the applicant, submitted that in Loader's case this court did not, in his words, "grapple" or have to "grapple" with the point, because Mr Pereira, counsel for the claimant, had conceded it, and that the decision is in any event distinguishable because the court was not dealing with whether the Wednesbury test applied to a screening decision. As to the case that is most directly against him, R (Jones) v Mansfield DC  EWCA Civ 1408, Mr Wolfe maintained that the point "only arose in argument" and, more importantly, that decision and others relied on by the Secretary of State pre-dated the enactment of the Public Participation Directive and Article 10A of the EIA Directive giving legal effect to provisions of the Aarhus Convention requiring effective public participation in decision-making in relation to certain environmental matters and developments in the jurisprudence of the CJEU. The effect of these is inter alia to require a person who objects to the Secretary of State's decision to have access to an independent court to challenge its substantive and procedural legality. Mr Wolfe submitted that the Wednesbury test was inadequate for that purpose. He also submitted that if this court refuses permission, as there is no further appeal, it should refer the questions to the CJEU.
6. The proposed development is of 170 dwellings and associated roads and infrastructure over 4.75 hectares of a 12.7 hectare site at Carson's Drive, Great Cornard, Sudbury, Suffolk, adjacent to existing housing. The site was originally within a locally designated Special Landscape Area ("SLA"), but was allocated for residential development following a local plan inquiry. It is common ground that the site falls within paragraph 10(b) of the first column of Schedule 2 to the 1999 EIA Regulations. The general heading is "infrastructure projects", and paragraph (b) covers "urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas". The threshold specified in column 2 is that the area of the development exceeds 0.5 hectares. The indicative size thresholds for the EIA process in the department guidance (Circular 2/99) is a site area of more than 5 hectares and a development which would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings).
7. The applicant lives near the site and is Chairman of the Cornard Tye Residents' Association. Persimmon applied for planning permission in January 2010. A number of the proposed dwellings would be visible from the grounds of Abbas Hall, a Grade 1 listed building. In April 2010 English Heritage wrote to the local planning authority, Babergh District Council ("the Council") recommending further analysis (including the use of photomontage) on the historic landscape because of the views down and across the valley, and its significance because of its association with the artist Thomas Gainsborough. English Heritage did not state that it considered the development is an EIA development.
8. In September 2010, the new owner of Abbas Hall wrote to the Council asking whether the Council had considered the need for an Environmental Statement by means of a screening opinion in accordance with the 1999 EIA Regulations. The Council accepted that it ought to have, but had not, screened Persimmon's application within three weeks of its receipt. In a document dated 17 November 2010 the Council gave an initial "screening opinion" for EIA purposes. That concluded the proposed development would not have a significant impact on the environment and that an environmental impact assessment was therefore not required.
9. Following a challenge to that screening opinion in a pre-action protocol letter by the applicant's solicitors, on 15 February 2011 the Council reconsidered the matter. In a second screening opinion it decided that an EIA was necessary. It did so because it concluded that the development proposals were likely to have an impact on the setting of Abbas Hall and on the locally designated Special Landscape Area ("SLA"). Its reasons for this conclusion were that, in the short term, a number of the 170 dwellings would be exposed to views from the grounds of Abbas Hall and from within the Special Landscape Area until proposed new woodland planting had sufficient time to mature. It, however, also stated that when the proposed woodland landscaping reached maturity, that planting would have its own effects on the setting of Abbas Hall and the SLA. While the "visual urbanising effects" of the 170 dwellings would reduce in time, the woodland belt would, in itself, have the effect of changing the landscape and its own impacts upon the setting of Abbas Hall, the effects increasing in time as the planting matured. The Council stated that the visual impacts are "not capable of being reversed without significant investment and social upheaval (removal of the woodland belt and removal of the dwellings and associated infrastructure)".
10. In a letter dated 15 April 2011, Persimmon requested the Secretary of State to make a screening direction under Regulation 6 of the 1999 EIA Regulations. A Senior Planning Manager in the Department for Communities and Local Government sought the advice of inter alia English Heritage. In emails in August 2011 English Heritage stated that there would be harm to the historic environment, but less than substantial harm. This did not in itself justify the development being an EIA development, but might do so if taken together with other impacts and effects on environmental issues.
11. The Secretary of State's direction, dated 21 October 2011, concluded that an EIA was not required. The Secretary of State concluded that:-
"Whilst recognising the historic and cultural importance of the landscape both in terms of the Grade 1 Listed Building of Abbas Hall, its status as part of a Special Landscape Area and its cultural associations with the work of Thomas Gainsborough, the location of the development, largely shielded by a bowl in the landscape and next to an existing housing development, together with the wider absorption capacity of open rolling hills around the site, mean that the impact of the development would not be of sufficient magnitude to be likely to have a significant effect on the environment."
12. The reasons for disagreeing with the Council as to (a) the impact of the development and setting on Abbas Hall, and (b) the impact of the proposed trees are set out in a supplementary note to the answer to question 15 of the PINS screening checklist. That note stated the writer had visited the site. The writer had a visualisation of the view of the site with the houses on it although it may not have been a photomontage of the quality envisaged by English Heritage.
13. The supplementary note recognised the impact on the historic landscape and the SLA. The views of the Council and English Heritage are recorded, together with English Heritage's reminder that although the impact on the historic landscape does not in itself justify EIA, taken cumulatively with other impacts it may.
14. The note recorded the difference of opinion with the Council as to whether the woodland would have a significant environmental effect. It recognised that as the screening belt would be on relatively high ground there would be an impact on the landscape and the building (particularly from its upper floors), but considered its effect would be relatively limited given the breadth of the belt. The writer did not consider the impact would be so detrimental as to be considered as having a significant environmental effect, and stated that the precise position of the screening belt was a matter that could be negotiated between parties through the planning process.
15. As Patten LJ observed during the hearing, it appears from the supplementary note that the officer considered that, because the development site sat partially in a bowl on the land and would be partly shielded, he did not consider that the development would cause significant harm to the landscape or a significant environmental impact. He also referred to the fact that the Hall was already well screened by trees. It thus appears that for these reasons he did not consider that, until the trees had grown, there would be a significant impact.
16. The concluding paragraph of the note stated that the development "would only account for a relatively small part of the wider landscape and would be at least partly concealed from view", and "would extend an existing built up area rather than introducing an isolated pocket of development". The final sentence stated that "therefore" the writer did not consider the development was likely to have significant effects on the environment.
17. Following further exchanges between the defendant and the applicant's representatives, these proceedings were filed on 20 December 2011. The owner of Abbas Hall does not appear to have participated in them. Permission to apply for judicial review was refused on the papers on 27 February 2012 and, following the hearing before HHJ Mackie QC on 29 May 2012, by him.
18. Mr Wolfe contrasted the Council's screening opinion, which was organised under the headings in Schedule 3 to the EIA Regulations and thus explicitly addressed the criteria, with the supplementary note in the screening direction, which was not. The question, however, is not whether the latter was organised under the headings in the Schedule, but whether it substantively addressed the matters and adequately explained why the Secretary of State's officer took a different view to the Council.
19. The first question is whether the Secretary of State fell into error because he failed to take a precautionary and purposive approach when making his screening direction. Mr Wolfe relied on the statement of Pill LJ in R (Loader) v Secretary of State for Communities and Local Government  EWCA Civ 869 at :
"The decision-maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of decision. Depending on the information available, the decision-maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken."
20. This case, like Loader's case, is not one in which the Secretary of State exercised his judgment at the earliest stage. By the time the matter came before him, there had been a local plan inquiry at which the relationship between the site, Abbas Hall and the Special Landscape Area was considered. A heritage statement dated 1 March 2010 prepared by Boyer Planning on behalf of Persimmon was available. The views of English Heritage had been obtained. When making his decision, the Secretary of State had these before him as well as the views of other objectors and Persimmon. The conclusion in the supplementary note to which I have referred was that the person conducting the screening did not consider "the development is likely to have significant effects on the environment". Earlier, the officer had stated of English Heritage's advice that they had stated that the impact on the landscape and building "would" not be of such significance to justify EIA. Mr Wolfe submitted that this showed a clear error, because English Heritage had used the word "may".
21. The authorities considered by this court in Loader's case show that an approach which considers whether there is a real risk as opposed to a probability of an impact embodies a precautionary approach. They are set out by Pill LJ, who gave the only substantive judgment: see  EWCA Civ 869 at  - . Toulson and Sullivan LJJ agreed with Pill LJ. For the reasons in the following paragraphs of this judgment, I have concluded that it is unarguable that the Secretary of State's approach in this case failed to embody a precautionary approach.
22. The assessment of the significance of an impact or impacts on the environment has been described as essentially a fact-finding exercise which requires the exercise of judgment on the issues of "likelihood" and "significance": see Bowen-West v Secretary of State  EWCA Civ 321 at  per Laws LJ, and Jones v Mansfield  EWCA Civ 1408 at  and  per Dyson and Carnwath LJJ. Carnwath LJ stated that, because the word "significant" does not lay down a precise legal test but requires the exercise of judgment on planning issues and consistency in the exercise of that judgment in different cases, the function is one for which the courts are ill-equipped. See also the well-known statement of Lord Hoffmann in Tesco Stores v Secretary of State  1 WLR 759 at  that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State. This is particularly so where the issue is the visual impact of a development on a site, and the relevant officer, unlike the court, has visited the site and used his expertise in assessing it.
23. I reject Mr Wolfe's submission that the statement in the supplementary note that English Heritage's advice was that the impact on the landscape and building "would" not be of such significance to justify EIA constituted a reviewable error. English Heritage certainly did not maintain that the impact on the historic landscape justified EIA. Both European and national jurisprudence show that the "likely to have significant effects on the environment" test probably requires "something more than a bare possibility ... though any serious possibility would suffice": see R (Bateman) v South Cambridgeshire DC  EWCA Civ 157 at  and the opinion of the Advocate-General in Case C-75/08 R (Mellor) v Secretary for Communities and Local Government  Env. LR 18 at . The last paragraph of the supplementary note replicates the statutory test and the Secretary of State's conclusion was unequivocal and stronger. It stated that the development "would not cause a significant environment impact". That is a more precautionary approach than is required by the 1999 EIA Regulations.
24. What of the fact that the Secretary of State came to a different conclusion to that of the Council? The entitlement of the Secretary of State to form a view which differed to that of the Council is recognised in Regulation 5(6) of the 1999 EIA Regulations. It is only when the local planning authority's screening opinion is that the development is EIA development that the developer may request the Secretary of State to make a Screening Direction. The statutory scheme therefore contemplates that the Council and the Secretary of State may reach different views on the "likely significant effect" question.
25. Mr Wolfe's argument that the Secretary of State fell into error depends on his submission based on the decision of the Grand Chamber in Case C/127/02 Waddenzee (2004) ECR 1-7405 that a key element of a precautionary approach and the approach which should have been undertaken by the Secretary of State is that further assessment is required, and thus a positive screening decision was required, unless it can properly be said that there is no reasonable doubt about the potential for significant environmental impact.
26. Mr Wolfe submitted that in the light of the views of English Heritage, the Suffolk Preservation Society, and the Council this could not be the case. That, however, comes very close to suggesting that once there are differing views on a question, there must be a full EIA. It is also very similar to the submission made unsuccessfully in Loader's case that a full EIA process is required in all cases where the effect would influence the development consent decision. As Pill LJ stated (at ), accepting that submission would devalue the entire EIA concept, which involves a formal and substantial procedure often involving considerable time and resources. It is also clear from both the national and the EU indicative guidance that the full EIA process will only be required in a very small proportion of the total number of Schedule 2 developments.
27. To require the EIA process where there are differing views would also largely make the Secretary of State's role redundant. As to the Waddenzee case, that was concerned with the Habitats Directive. The reference to a reasonable doubt is to a reasonable doubt in the mind of the primary decision-maker. There is no support in that case for the view that, where somebody else has taken a different view to the primary decision-maker, it is not possible to demonstrate that there is no reasonable doubt. It is not suggested in this case that the Secretary of State or his officer had any such doubt.
28. I now turn to the reasoning in the decision and the supplementary note. Mr Wolfe's skeleton argument (paragraph 11) stated "the Secretary of State did not mention the reasons given by the LPA for its decision (nor the view from consultees such as English Heritage), much less any reasons or justification for taking a completely different view to them all." That was a surprising submission. It is true that the covering letter does not refer to those matters, but it is equally true, as Mr Wolfe accepted during the hearing, that the decision and its reasons consisted of both the covering letter and the PINS screening checklist. The latter included the supplementary note, the contents of which I have summarised at  - , and which address the positions of both the Council and English Heritage. In fact, the Secretary of State's officer did not leave anything material out. Mr Wolfe then submitted that the note contained clear errors. I have dealt with Mr Wolfe's submissions on the use of the word "would" at  above. He also submitted that the officer erred in respect of what English Heritage had said about photomontage evidence. That point is also not of assistance to him. The officer had the visualisation, took it into account, and was aware of English Heritage's views about its quality.
29. That leaves the absence of an express reference in the note to the Council's view that there would be a significant impact in the fifteen years it would take for the trees to mature. I have referred (see  - ) to the fact that it appears that the officer's assessment of the site after a visit was that, because the site sat partially in a bowl in the land and would be partially shielded, there would be no significant impact while the trees were growing. Since that was the position of the Secretary of State and his officer, there was no need for an express reference to the fifteen years, particularly since the positioning of the trees and their size when planted was a matter for the planning process.
30. The decisions in C-75/08 (3/19) R (Mellor) v Secretary of State for Communities and Local Government Case  Env. LR 18, Loader's case and the EU guidance recognise that the test for determining whether a development is EIA development is meant to be one which is intended to be used quickly by people with the requisite qualifications and experience. In this case, the supplementary note shows that the Secretary of State's official did far more than rely on the thresholds and the tick-box approach.
31. Ultimately, the grounds which Mr Wolfe has put before this court amount to no more than a complaint about the adequacy of the reasons in the supplementary note and disagreement on matters of planning judgment with the Secretary of State's officer. As to the former, reading the supplementary note in the light of the guidance of Lord Brown in South Bucks DC v Porter (No.2)  UKHL 33 at , I do not consider that the reasoning in it gives rise to any doubt as to whether there was an error of law, and (see  above) disagreement with a planning judgment is not a ground of review. For these reasons, I do not consider that it is arguable that the Secretary of State's approach in making the screening direction erred in the way which Mr Wolfe contended that it did.
32. I turn to the second ground of this application. Mr Wolfe submitted that reviewing the Secretary of State's decision by the application of the Wednesbury principle was insufficient and that more intensive scrutiny was required, but he did not make a positive submission as to what that would be. His task, he repeatedly said, was to show that the matter was not clear and that a reference to the CJEU was required. He referred to the suggestion in the Aarhus Convention Compliance Committee's December 2010 report that the appropriate standard might be a proportionality test, but he did not submit that it was.
33. Mr Wolfe's submissions on this part of the application were essentially that the decisions of this Court which adopted and confirmed the Wednesbury approach either pre-date the Aarhus Convention and its enactment into EU and national law and developments in the jurisprudence of the CJEU, or are distinguishable or per incuriam. He placed particular weight on the Aarhus Convention Compliance Committee's December 2010 report expressing concern about the Wednesbury approach. He also relied on the fact that "what are in play here are fundamental rights", rights to participation in front-line decision-making and the right of access to a court able to assess the substantive and procedural legality of an environmental decision: EIA Directive Articles 6 and 11 (formerly 10A) and Aarhus Convention, Article 9.
34. In fact, the decisions of this court in Bowen-West and Loader were in 2012, and the decision of the CJEU in Case C/508/03 Commission v United Kingdom (2007) Env. LR 1 in 2006 post-dated those developments. In Loader's case it appears that by the conclusion of the oral submissions, Mr Pereira, counsel for the claimant, conceded that, provided the correct test was applied by the Secretary of State, the court should approach a challenge to the decision on Wednesbury principles. Notwithstanding Mr Wolfe's attempt to distinguish that case, the arguments in this case appear in substance to re-run arguments considered and rejected by this court. See, in particular, Mr Pereira's submissions set out at  - .
35. In Commission v UK, the CJEU stated (at  - ) that the test required by EU law is "manifest error of assessment", a test substantially the same as the Wednesbury test. At  the CJEU stated:
"It is also clear from...Commission v Portugal (2004) ECR 1 5517 that, in order to demonstrate that the national authorities exceeded the limits of their discretion by failing to require that an impact assessment be carried out before giving consent for a specific project, the Commission cannot limit itself to general assertions by, for example, merely pointing out that the information provided shows that the project in question is located in a highly sensitive area, without presenting specific evidence to demonstrate that the national authorities concerned made a manifest error of assessment when they gave consent to a project."
36. On this point too, Mr Wolfe, like Mr Pereira in Loader's case, sought to rely on the decision of the Grand Chamber in case C/127/02 Waddenzee (2004) ECR 1 - 7405. Although Pill LJ did not refer to this decision in the conclusions section of his judgment, his conclusion that the Wednesbury test suffices can only be understood as rejecting the argument that, in this context, assistance for a more intrusive scope of review is to be obtained from Waddenzee.
37. The Aarhus Convention and the views of the Aarhus Convention Compliance Committee do not ultimately assist Mr Wolfe. First, it is clear from the jurisprudence that the Convention is not part of domestic law or EU law: for example, see Walton v Scottish Ministers  UKSC 44 at . Secondly, the Compliance Committee has reached no concluded view that the Wednesbury approach is impermissible. Moreover, its expression of concern is general and unparticularised. For example, it only refers to Wednesbury and does not refer to the other established heads of public law review; error of law, error of fact, and the principles of relevance and of propriety of purpose which are sometimes insufficiently distinguished from Lord Greene's residual category, which Lord Diplock termed "irrationality". It also does not identify the variations in the intensity of Wednesbury review that reflect the nature of the interest affected.
38. The cases of Bowen-West and Loader were decided since the Aarhus Convention Compliance Committee expressed its concern but in neither did this court consider that put into question the existing approach. The Committee's view and concern is undoubtedly worthy of respect. But, even if it had reached the view that the Wednesbury approach does not enable the court to assess the substantive and procedural legality of the Secretary of State's decision, its view would have had no direct legal consequence. Thirdly, as far as Article 9 of the Aarhus Convention is concerned, although this has been brought into EU law as Article 10A of the EIA Directive, it did not result in the later decision of the CJEU in Commission v UK criticising the use of the Wednesbury rule.
39. I have referred to the fact that Mr Wolfe floated before us, but did not propose, a proportionality test. Any suggestion that the appropriate approach might be proportionality, however, has to overcome a formidable obstacle. The question for the Secretary of State when making his screening direction in this case was a question of fact, albeit not a hard-edged question. Accordingly, the reasons it cannot be subjected to a test of proportionality which were identified by Laws LJ in R (Bowen-West) v Secretary of State  EWCA Civ 321 at , a judgment referred to by Pill LJ in Loader's case, apply here. Laws LJ stated:
"I do not see that there is any true question of proportionality arising in the present case. We are not concerned with the exercise of a discretion and therefore we are not concerned with assessing whether a response to a particular aim is or is not proportionate. We are concerned with a fact-finding exercise. There is nothing, as it seems to me, in the jurisprudence of the Court of Justice to show that the conventional English law approach is inapt...."
40. Mr Wolfe's argument also has to overcome the fact that the Commission's guidance, as Pill LJ stated in Loader's case at , recognised that national planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. This was recognised in the Waddenzee case. Here, the national authority with power to make the decision under the Regulations is the Secretary of State.
41. Finally, the argument that the applicant's environmental rights under the EIA Directive require a proportionality-based standard of review because they are fundamental rights is also misconceived. The applicant only has such rights if the development is EIA development. The fundamental right will therefore only incept once the development is found to be an EIA development.
42. Mr Wolfe's submissions are largely based on the position of the Aarhus Convention Compliance Committee. But that body has made no decision and has only expressed concerns. The questions which Mr Wolfe seeks this court to consider and to refer to the CJEU have been considered by this court on a number of occasions, including occasions since the Public Participation Directive. The court has decided in substance that the standard of review is to be the familiar common law Wednesbury standard. That was also the position of the CJEU in 2006. The recent cases are all post-Article 10A, and post-Waddenzee. The judges of this court referred to Waddenzee but gave no indication that it puts into question the Wednesbury approach to review. The only other recent CJEU case that has been put before us is Commission v UK. That case gives no support to Mr Wolfe's submission. For these reasons, subject to the views of My Lords, I would refuse permission to appeal from the decision of the deputy judge.
43. I have also carefully considered Mr Wolfe's submissions on the question of referring this case to the CJEU, but have decided that, since he was unable to point to any European jurisprudence taking or favouring an approach that differs from the standard common law approach to judicial review including the different strands of the Wednesbury test, his submission that there is sufficient doubt in the position to justify making a reference is simply not made out.
Sir Stanley Burnton:
44. I entirely agree. I wish to emphasise that, as stated by Lord Justice Beatson at  above, a proportionality test is by its nature inapplicable to a factual assessment such as that made by the Secretary of State in this case.
Lord Justice Patten:
45. I also agree.