Neutral Citation Number:  EWHC 1065 (Admin)
Case No: CO/12074 and 10269/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
JAMES DINGEMANS QC SITTING AS A DEPUTY HIGH COURT JUDGE
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MATTHEW CHAMPION Claimant
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NORTH NORFOLK DISTRICT COUNCIL
NATURAL ENGLAND Defendant
CRISP MALTINGS GROUP LIMITED Interested party
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Richard Harwood QC (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Estelle Dehon (instructed by Sharpe Pritchard) for the Defendant (1st Claim)
Christopher Boyle QC (instructed by Browne Jacobson) for the Defendant (2nd Claim)
Christopher Lockhart-Mummery QC (instructed by Howes Percival) for the Interested party
Hearing dates: 23 and 24 April 2013
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James Dingemans QC sitting as a Deputy High Court Judge:
1. These claims arise out of the grant of planning permission for the erection of two silos to store some 6,000 tonnes of barley, a lorry park with wash bay and ancillary facilities, associated surface water balancing pond, access and landscaping at Crisp Maltings, Fakenham Road, Great Ryburgh, Norfolk ("the proposed development"). The land is owned by the Interested Party Crisp Malting Group Limited ("Crisp Maltings Group").
2. The proposed development is about 400 or 500 metres away from the River Wensum, and 2.1 kilometres by watercourse. The longer length for the watercourse is because the ditches do not lead directly from the proposed development to the river but flow east into the grazing marsh ditch network of the Wensum Valley.
3. The river is a Site of Special Scientific Interest ("SSSI"), and is a designated EU Special Area of Conservation ("SAC"), because it hosts 4 species listed in Annex II of the Habitats Directive, 92/43/EEC ("the Habitats Directive"). These are white-clawed crayfish, Desmoulin's whorl snail, brook lamprey and bullhead. There is also Ranunclus vegetation. The river has what has been described as an "outstanding chalk stream fauna". The conservation objectives were, among other objectives and subject to natural change, to maintain the river in favourable condition with particular reference to listed species.
4. As appears from paragraph 5.2 of the Extended Phase I Ecological Assessment dated February 2010 ("the Phase I Ecological Assessment") obtained by Crisp Maltings Group, concerns have been expressed about: (1) whether during the construction of the lorry park and infiltration basin there is the potential for sediment-laden and polluted run-off to enter the ditch system and be carried into the river; (2) whether during the operational phase water from the infiltration basin may drain into the ditch system towards the river; and (3) whether, in the event of a pollution incident, extreme rainfall and malfunction of the interceptor or infiltration basin, there is the potential for petro-chemicals and gritting salt from the lorry park to enter the river. Deposition of pollutants in sediments could have long-term impacts on water quality.
5. In the course of the application for planning permission, there were produced on behalf of Crisp Maltings Group a number of detailed reports including ecological assessments and flood risk assessments, and there was consultation by North Norfolk District Council ("the Council") with, among others, Natural England, the Environment Agency and the Norfolk Rivers Internal Drainage Board ("the IDB"). Mitigation measures designed to ensure that pollutants would not enter the river were proposed, and in some cases, revised and improved in the light of comments received. No Environment Impact Assessments ("EIA") or Habitats Appropriate Assessments ("Appropriate Assessment") were carried out.
6. On 13 September 2011 the Council granted planning permission subject to conditions for the erection of the silos, lorry park and ancillary development at Crisp Maltings. In the course of the application Natural England, which is a statutory body established under the Natural Environment and Rural Communities Act 2006, made a number of responses to the application for planning permission as a statutory consultee, including a response dated 26 July 2011. Natural England is the appropriate nature conservation body for the purposes of regulation 61(3) of the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations") which the Council, as the competent authority, had to consult.
7. The Claimant Matthew Champion ("Mr Champion") is a member of the Ryburgh Village Action Group ("VAG") and seeks, on a number of grounds, to quash: (1) the grant of planning permission by the Council in the first action; and (2) the consultation response made by Natural England in second action.
8. At the start of the hearing on Tuesday 23 April 2013 there were a number of outstanding procedural matters. The first related to a protective costs order ("PCO") sought by Mr Champion in relation to the claim against Natural England. The second procedural matter related to an application for permission to rely on a further witness statement by Mr Champion made on 18 March 2013. The third related to an application to amend the Statement of Facts and Grounds to include a new point of law relating to the Council's Development Committee's legal power to decide not to get an Appropriate Assessment or an EIA.
9. Having heard argument I reserved the first two matters because it seemed to me that I could make a fairer decision in the light of a full understanding of the case. I should record that while reserving the matter I did confirm that, whatever order I decided to make in relation to the PCO, I would not impose an additional liability on the Claimant greater than £5,000 for Natural England's costs. I also said that I would look at the witness statement of Mr Champion on a provisional basis at this stage for the purposes of deciding the application, and that if I decided to admit the further witness statement of Mr Champion and there were relevant factual matters which needed a response, I would not take them into account without giving the Council, Natural England and Crisp Maltings Group a chance to respond.
Amendment to the claim form
10. The third procedural matter, namely whether the Claimant could argue the new point of law, could not properly be postponed to my judgment. Having heard argument I granted permission for the Claimant rely on the ground. This was because: it was a pure point of law so that no further evidence was required to deal with the point; and all the parties were able to deal with this new point within the original time estimate for the hearing. Mr Harwood QC produced an amendment to the Grounds (covering paragraphs 42 to 52) to cover this new point, and I give permission for the Claimant to amend the Claim Form in the action against the Council to include this amendment.
11. I will deal with orders for costs consequential on the delivery of this judgment, but nothing has been said to me so far to suggest that the Claimant should not bear the usual consequences of such a late amendment to its claim.
12. So far as the PCO is concerned it is necessary to set out some of the procedural background. The claim against Natural England was issued on 25 October 2011. It was noted at section 7 of the claim form that the claim was being made on a protective basis in anticipation that a second claim would be made against the Council, and directions providing for a stay were suggested. It was noted that an application for a PCO would be considered if Matthew Champion proceeded with the claim. In Natural England's Summary Grounds of Resistance there was (understandably) no reference to a PCO.
13. The claim against the Council was issued about a month and a half later on 12 December 2011. In section 7 of that claim form the Claimant applied for a PCO if one could not be agreed with the Council. The Council responded in the summary grounds of defence to the effect that it was accepted that a PCO was appropriate, and suggesting a cap of £5,000 for Mr Champion's liability for the Council's costs, and a cross cap of £20,000 for the Council's liability for Mr Champion's costs. An undated reply to the Council's summary grounds of defence was filed in which it was noted that the Council accepted that a PCO was appropriate, but that the proposal for a £20,000 cap on the Claimant's costs was unjustified. One of the submissions advanced was "the Claimant has, of course, to deal with two opposing parties, one of which is represented by Queen's Counsel so that the suggestion of a £20,000 cap would leave the Claimant at risk of substantial unrecoverable costs", but it seems likely that that was a reference to the fact that Crisp Maltings Group, who was an interested party, had by then retained Mr Lockhart-Mummery QC.
14. On 9 March 2012 Her Honour Judge Alice Robinson sitting as a High Court Judge granted permission to apply for judicial review to Mr Champion in both claims. In relation to the claim against the Council the following order was made: "(2) Claimant's liability to pay costs will be limited to £5,000; (3) Defendant's liability to pay costs will be limited to £35,000." In the observations HHJ Robinson sitting as a High Court Judge noted that that "the Claimant and Defendant agree that a protective costs order for both parties is appropriate. The Claimant's cap of £5,000 is agreed. In the light of the multiplicity of issues a cap of £35,000 is appropriate for the Defendant".
15. In relation to the claim against Natural England HHJ Robinson sitting as a High Court Judge noted that "although the claim form includes an application for a protective costs order no further detail is provided nor has the Defendant commented on it, presumably as attention has focussed on the protective costs orders sought in CO/12074/2011. If a separate protective costs order is sought in this claim an application should be made with figures and the Defendant given an opportunity to respond."
16. On 12 April 2012, just over a month later, Mr Champion applied for a PCO against Natural England limited to £3,000 with a reciprocal cap of £35,000 plus VAT. A witness statement from Lisa Foster, of Richard Buxton Environmental & Public Law, was made in support of the application, together with a witness statement from Mr Champion. Mr Champion noted that he was a member of a small steering group, that £8,000 had been raised to date, and with an expectation of raising £13,000 in all. It was noted that no individual in the Village Action Group was in a position individually to pay the capped costs.
17. There was a draft estimate of the Claimant's costs showing costs up to 15 June 2012 and estimated costs thereafter. There was a figure of £20,515 incurred in relation to the Council, and £6,308 in relation to Natural England up to 15 June 2012. There were estimated costs of £25,716 to the conclusion of the hearing, together with a 100 per cent success fee of £25,716, although I am told that the CFA was in fact entered into only shortly before the hearing. This gave an overall total for the claim against both Defendants of £78,255 inclusive of VAT.
18. The Aarhus Convention concerns, among other matters, access to justice in environmental matters. The need for protective costs caps in such cases has been considered in a number of cases, including R(Garner) v Elmbridge Borough Council  EWCA Civ 1006;  3 All ER 418.
19. New provisions, which affect cases commenced after 1 April 2013, are made by Practice Direction 45, pursuant to SI 2013 No.262 The Civil Procedure (Amendment) Rules 2013, Part 45.41 as amended. These make provisions for caps of £5,000 for an individual, £10,000 for an organisation and £35,000 for the Defendant but, because of the time at which these claims commenced, they are not applicable.
20. Having now heard full argument on the case, and having had an opportunity to consider whether the claim against Natural England is in reality a separate claim, or effectively bound up in the claim against the Council, I have concluded that the claim against Natural England is bound up in the claim against the Council. This is because the essential complaint against Natural England (that Natural England should have directed itself properly and told the Council to get an EIA or Appropriate Assessment) mirrors part of the complaint against the Council (namely that the Council should not have granted planning permission without an EIA or Appropriate Assessment). This in fact was the point made by the Claimant's solicitors in their successful application for the cases to be heard together.
21. In those circumstances it seems to me that the costs caps should be extended to include Natural England. This means that the Claimant's liability for costs, whether to the Council, Natural England, or both of them, will not exceed £5,000. It also means that the Council and Natural England's liability for the Claimant's costs (if they are ordered to pay costs) will not exceed £35,000, subject to the point about VAT below.
22. It appears that the cap as originally imposed did not include provision for VAT. A cap, and cross cap, which does not make appropriate provision for VAT can cause imbalance (up to the percentage rate of the VAT) in the caps if one party is VAT registered (and can therefore recover VAT liabilities) and the other is not. In the circumstances of this case I will adjust the cross cap for the Claimant to recover costs from the Council, Natural England, or both of them, so that the Claimant will be limited to a recovery of £35,000 plus VAT.
The application to adduce late evidence
23. On 18 June 2012 the Claimant's solicitors notified the Court and the other parties that it intended to seek permission to vary the grounds to rely on what has been termed "the cumulative impacts point". On 16 March 2013, which the Defendants point out is less than 6 weeks before the hearing, the Claimant applied to adduce witness evidence in the form of a witness statement from Mr Champion dated 13 March 2013. This purports to set out the planning history of the site from the 1880's. Objection is taken on the basis that this is late in the proceedings, and late in the sense that the time for formulating the grounds was 15 months ago. It is also said that if the Defendants (in either action) and the interested party were to respond, it would take time and increase costs in a way that was not proportionate. The Council also made the point in their submissions that in the Claimant's Skeleton Argument there was no developed reference to the new witness statement in any event.
24. In the course of oral submissions on behalf of all of the parties, I was only referred once to the witness statement, which was to look at one undated Google Earth photograph of the relevant site. In the course of the hearing I was handed more helpful extracts from Ordnance survey maps produced by Cadcorp showing relevant contours around the existing site and proposed development. In these circumstances, and where the control of costs in all cases, and in particular in environmental cases, is important, it seems to me that I should refuse permission to adduce this witness evidence. This is because: (1) it is not sufficiently relevant to the issues engaged to justify inclusion, as evidenced by the fact that it was not referred to on a substantive basis in submissions; (2) it has come late; and (3) it would incur disproportionate expense and delay if I were to direct that evidence in reply be filed.
25. In case it is relevant to issues of assessment of costs I can record that the argument on procedural matters took from 10.30 am to 11.45 am on the first day.
RELEVANT LEGAL PROVISIONS
Habitats Directive and Regulations
26. Article 6(3) of Council Directive 92/43/EEC ("the Habitats Directive") provides that:
"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In light of the conclusions of the assessment of the implications for the site ... the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public".
27. The Habitats Directive was implemented by the Habitats Regulations 2010. Regulation 61 provides that:
"(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which
(a) is likely to have a significant effect on a European site ... (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications for that site in view of that site's conservation objectives."
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body ..."
EIA Directive and EI Regulations
28. Article 2(1) of Council Directive 85/337/EEC ("the EIA Directive") requires members states to "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".
29. The Town and Country Planning (Environmental Impact Assessment) Regulations) (England and Wales) Regulations 1999 ("the EI Regulations 1999") and now the 2011 Regulations with effect from 24 August 2011, transpose into domestic law the requirement of the EIA Directive.
Local Government Act 2000 and Regulations
30. Section 13(1) of the Local Government Act 2000 provides:
"This section has effect for the purposes of determining the functions of a local authority which are the responsibility of an executive of the authority under executive arrangements."
31. Provision was then made for Regulations to determine whether functions were to be exercised by the executive. Regulation 13(10) provided that any function which was the responsibility of the executive might not be discharged by the authority.
32. Section 48(4) provided:
"Any reference in this Part to the discharge of any functions includes a reference to the doing of anything which is calculated to facilitate, or is conducive or incidental to, the discharge of those functions."
33. The Local Authorities (Functions and Responsibilities)(England) Regulations 2000 ("the Local Authorities Regulations 2000") provide:
"(1) The functions of a local authority specified in column (1) of Schedule 1 to these Regulations by reference to the enactments, directions and circulars specified in relation to those functions in column (2) are not to be the responsibility of an executive of the authority;"
34. Schedule 1, which is headed "Functions not to be the responsibility of an authority's executive" provides, in column 1 at 5 "Power to determine application for planning permission" and in column 2 there is reference to "Sections 70(1)(a) and (b) and 72 of the Town and Country Planning Act 1990. In column 1 at 9 there is reference to "duties relating to the making of determinations of planning applications" and in column 2 there is reference to "Sections 69, 76 and 92 of the Town and Country Planning Act 1990 and articles 8, 10 to 13, 15 to 22 and 25 and 26 of the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995/419) and directions made thereunder".
SOME RELEVANT LEGAL TESTS
35. The European Court of Justice ("ECJ") considered article 6(3) of the Habitats Directive in Landelijike Waddenzee v Staatsecretaris can Landbouw  ECR 1-7405. It noted, at paragraph 40 that "the requirement for an appropriate assessment of the implications of a plan or project is conditional on its being likely to have a significant effect on the site". It was noted in paragraph 43 that there had to be "... a probability or a risk that the [proposed development] will have significant effects on the site concerned". The issue of risk was addressed in paragraph 44 where the precautionary principle was noted and it was said that "... such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned ...". In answer to the specified question it was recorded that the proposed development "... is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other projects".
36. This approach has been followed in a number of cases, including the most recent decision of the ECJ in Sweetman v Minister for Environment, Heritage and Local Government (C-258/11). That case is notable for the opinion of Advocate General Sharpston who, at paragraphs 45 to 50, set out a textual analysis of the different language versions of the text and recorded that, as appears from Waddenzee the threshold for the first stage at article 6(3) of the Directive is a very low one.
37. The ECJ commented on the EIA Directive in World Wildlife Fund v Autonome Provinz Bozen (Case C-435/97)  1 CMLR 149 and Commission v Ireland (Case C-215/06). Domestic case law has also addressed the tests. In R(Bateman) v South Cambridgeshire District Council  EWCA Civ 157 at paragraph 17 Moore-Bick LJ, with whom Jackson LJ agreed, referred to any "serious possibility" of significant effects being sufficient. In R(Morge) v Hampshire County Council  EWCA Civ 608;  PTSR 1882 in the Court of Appeal Ward LJ, with whom Hughes and Patten LJJ agreed, said that the expression "likely" in relation to the EIA connoted "real risk and not probability". It might be noted that R(Morge) was appealed to the Supreme Court  UKSC 2;  1 WLR 268, but that this point did not arise.
38. Both Mr Lockhart-Mummery QC and Mr Boyle QC made submissions to the effect that the "trigger" for an assessment is lighter in relation to the Habitats Appropriate Assessment than it is in relation to the EIA. There is an obvious similarity of language in the Habitats Directive ("... but likely to have a significant effect thereon") and the EIA Directive ("... projects likely to have a significant effects on the environment") and I note that in paragraph 17 of Bateman, concerning the EIA, reference was made to Waddenzee, which concerns the Habitats Appropriate Assessment without apparently drawing a distinction between the lightness of the trigger in relation to the tests for the EIA or the Habitats Appropriate Assessment. However I accept that there are important differences between an EIA and Habitats Appropriate Assessment. The most important difference is that, with a Habitats Appropriate Assessment, the environmental significance of the relevant protected site has already been established, and the precautionary principle is most directly engaged. However it is not necessary to say anything further in relation to this matter because, given the particular factual matrix of this proposed development in the vicinity of the river which is a SAC and SSSI, it is accepted that if either test is satisfied (assuming that there are in fact different triggers for the Appropriate Assessment or EIA tests), it would be appropriate to carry out both an Appropriate Assessment and an EIA.
39. Two further legal propositions should be mentioned.
40. The first proposition is that, when considering whether the test for an assessment is triggered, the relevant authority may take account of the remedial measures submitted as part of the proposal. It appeared from the Skeleton Arguments that the Claimant might dispute the first proposition, but in oral submissions, the point became effectively common ground. This appears from: Gillespie v First Secretary of State  EWCA Civ 400;  Env LR 30 at paragraph 36, "when making his screening decision, the Secretary of State was not in my judgment obliged to shut his eyes to the remedial measures submitted as a part of the planning proposal" (Pill LJ); R(Catt) v Brighton and Hove City Council  EWCA Civ 298 at paragraph 35, when Pill LJ repeated his comments and noted that there was no general principle that only uncontroversial remedial measures could be taken into account; R(Hart) v Secretary of State for Communities and Local Government  EWHC 1204 (Admin);  2 P&CR 16 at paragraph 61 "... the competent authority may ask the proponent of a plan or project for more information about the plan or project, including any proposed mitigation, not merely for the purposes of carrying out an appropriate assessment, but also in order to determine whether an appropriate assessment is required in the first place"; and R(Loader) v Secretary of State  EWHC 2010 (Admin);  Env LR 8 at paragraph 64 "it is now common ground between the parties that it is open to the decision maker, in performing the screening exercise, to take into account mitigating measures."
41. The second proposition is that the decision of the relevant authority about whether an EIA or Habitats Appropriate Assessment is required is one for the relevant authority, subject to the irrationality or Wednesbury test. This appears from: R(Dicken) v Aylesbury Vale DC  EWCA Civ 851;  Env LR 20 at paragraph 16 "it is to be borne in mind that the test for the judicial review court is the irrationality test"; and the latest Catt decision being R(Catt) v Brighton & Hove City Council  EWHC 977 (Admin) at paragraph 62 "the likelihood that a potential effect will occur and its significance for the environment if it does are matters for the decision-maker to judge, not the Court" and at paragraph 96 "it is, essentially, a planning decision-maker's judgment. And it is not, therefore, the kind of judgment the Court will undo, unless it is shown to have been outside the range of a reasonable decision on the relevant facts".
42. One further matter was noted from the decided cases. It was that if a party uses the statutory language set out in the Habitats Regulations about "likely to have a significant effect" and incorporates reference to circulars (in that case Circular 06/2005) containing guidance referring to Waddenzee, it will "be impossible to conclude that, when using the correct statutory formulation, [the relevant authority] did not appreciate that the issue of likelihood had to be approached on the basis set out in Waddenzee", see R(Hart) at paragraph 78.
ISSUES RAISED BY THE CLAIMS
43. I can now turn to the issues raised by the claims made by the Claimant. Following the exchange of Skeleton Arguments, refinements in the course of oral submissions, and very considerable help from counsel, it has been possible to refine the issues in the claims against the Council and Natural England.
44. The Claimant relies on both the risks of pollutants entering the river (what was his ground 1), and separately on the light, noise and other effects of the development (what was his ground 2), in contending that there should be an EIA and Appropriate Assessment. The Council, Crisp Maltings Group and Natural England say that, given the mitigation measures, there is no such risk.
45. Mr Harwood QC for Mr Champion also contends that the Council's Development Committee did not have power to make the decision not to obtain an Appropriate Assessment and an EIA on 8 September 2011, it being a decision for the executive.
46. Mr Harwood QC also says that the Council's decision on 8 September 2011 is internally inconsistent and irrational. This is because the Council decided on 8 September 2011 that there was no need for an EIA or Appropriate Assessment. This means that the Council must have decided that there was no relevant risk that pollution from the proposed development would enter the river. However the Council also decided to impose planning conditions, which are only, under the relevant guidance in Circular 11/95 at paragraph 14, to be imposed if "necessary". Two of the conditions provided that Crisp Maltings Group should monitor water quality and take steps to improve the water quality if it deteriorated as a result of activities from the proposed development. This suggested that the Council considered it necessary to impose conditions to monitor and if necessary improve the water quality. The internal inconsistency arises because the Council can hardly consider that there is no relevant risk of pollution entering the river, yet impose "necessary" conditions to deal with such a risk.
47. Ms Dehon, for the Council, submitted that the Council's Development Committee had power to make the relevant decision, referred to other cases in which Committee's had taken the same decision, and noted that no point had been taken to suggest that the decision was unlawful. Ms Dehon dealt with the point about internal inconsistency and irrationality by suggesting that the particular conditions were driven by one Councillor who had a particular concern, that it was not appropriate to impose the conditions, that local democracy often worked in this way, and that the decision should not therefore be quashed.
48. Mr Lockhart-Mummery QC, for Crisp Maltings Group, was more direct in relation to this last point. He suggested that the particular conditions were unlawful (and might even be unenforceable) and that a careful analysis of all the factual material showed that these conditions were not necessary, and could not have been rationally imposed as necessary. He submitted that there was no relevant risk of pollutants entering the river and the decision should not be quashed, referring to relevant authorities on the exercise of discretion not to quash in judicial review proceedings.
49. The Claimant also contends that the decision made by Natural England not to require an Appropriate Assessment or an EIA was flawed, because the risk of pollutants entering the river, and damage to the environment, could not be excluded. Mr Boyle QC, for Natural England, says Natural England applied the appropriate test, particularly having regard to the matters set out in paragraph 42 above, and came to a proper decision. He says that there is a wider point engaged, and that there was no need for Natural England to be joined to the litigation.
50. In the light of these submissions it now appears that the following matters are in issue in Mr Champion's claim against the Council:
(1) whether the Council's Development Committee had legal power, pursuant to the Local Government Act 2000 and the Local Authorities (Functions and Responsibilities) (England) Regulations 2000/2853 ("the Local Authorities Regulations 2000"), to decide that it was not necessary to obtain an Appropriate Assessment or an EIA.
(2) whether the Council's decision to grant planning permission without an EIA was unlawful because it was irrational for the Council to conclude that there was no serious possibility or real risk of a significant effect on the environment;
(3) whether the Council's decision to grant planning permission without an Appropriate Assessment was unlawful because it was irrational for the Council to conclude that the information showed that it could be excluded, on the basis of objective information, that the proposed development would have a significant effect on the River Wensum.
51. In relation to the claim against Natural England, as a result of the order of HHJ Alice Robinson sitting as a Deputy High Court Judge made when granting permission on restricted grounds, the issues against Natural England are:
(1) whether Natural England applied the wrong standard of "no likely significant risk" in deciding whether an appropriate assessment was required; and
(2) whether, as a consequence of applying the wrong standard, Natural England erred in failing to require the appropriate assessment.
52. The factual background is essentially common ground but I have set parts of it out at some length because it is particularly relevant to the issue of whether there is any risk of pollutants entering into the river in the light of the submissions from the Council and Crisp Maltings Group that there was no basis for the particular conditions to be imposed.
The application for planning permission
53. On 1 October 2009 Crisp Maltings Group applied for planning permission for the relevant development. It is apparent that the proposed development caused some persons living in Ryburgh Village concerns and, over time, the Village Action Group was formed.
54. Natural England is the nature conservation body in relation to The Conservation of Habitats and Species Regulations ("The Habitats Regulations 2010"). On 26 November 2009 Mr Irvine, Crisp Malting Group's planning consultant, sent some details about the proposed planning application to Natural England. On 3 December 2009 Natural England noted, in an email to Mr Irvine, Crisp Malting Group's planning consultant, when referring to the river and the proposed development, that "if hydrological connectivity can be established, it is likely than an Appropriate Assessment will be required". It is right to record that this was only a provisional view.
The Phase I Ecological Assessment
55. In February 2010 the Phase I Ecological Assessment was produced. There was a desktop survey, and then a walk-over of the site on 9 November 2009. It was noted that, it being winter, some plant and animal species might not be obvious or recorded. The Assessment recorded at paragraph 4.2 that "all surface water draining from the lorry park and hardstanding will pass through an interceptor to separate and remove oil and petrochemicals. It will then be routed to a storage infiltration basin on the northern meadows which will act as a secondary treatment system. Water from the basin will drain through the underlying organic sands and possibly into the ditch system on the meadow. The treated effluent from the welfare facilities will also be piped to the infiltration basin. The vehicle washbay will have a separate drainage system to treat and recycle all washdown water and remove effluent from the site. All fuel on the lorry park will be stored in bunded tanks ...".
56. I have noted in paragraph 4 of the judgment above concerns that were recorded in paragraph 5.2 of the Phase I Ecological Assessment. That paragraph concluded "it is likely that an Appropriate Assessment for the River Wensum SAC will be required to determine in detail the potential impacts on qualifying features of the SAC".
57. Under mitigation, at paragraph 6.2, it was recorded that "mitigation for containing and preventing pollution is included in the proposed development, but potential risks to the River Wensum SAC and BAP coastal and flood plain habitat have not been fully evaluated. It is essential that pollution control measures and operation of the interceptor are adequate for the lorry park in all conditions, particularly during heavy rainfall. The effectiveness of the infiltration basin should also be thoroughly assessed to ensure that no contaminants will enter the groundwater and ditch system. It is assumed that an Appropriate Assessment will be required ...".
58. It might be noted that the statements about an Appropriate Assessment were provisional conclusions or assumptions, but they were made in the context of a report which noted that water from the basin would drain through the underlying organic sands "and possibly into the ditch system on the meadow" and that the Appropriate Assessment would determine "in detail the potential impacts on qualifying features of the SAC".
The 23 April 2010 decision
59. After this report had been received by the Council there was a telephone conversation on 23 April 2010 between Mr Meadows of Natural England and Mr Lyon of the Council. Mr Lyon's recollection was recorded at paragraph 9 of the Council's summary grounds of defence, and Mr Meadows believed that the record was "broadly accurate of the matters discussed". The gist of the conversation was to the effect that Natural England believed that "subject to pollution measures being clearly identified and addressed, EIA would not be necessary".
60. The Council adopted an EIA screening opinion on 23 April 2010 which concluded that the project was Schedule 2 development but that EIA was not required. It had been concluded "Subject to the applicant/agent ensuring that appropriate mitigation and safeguarding measures are put in place to prevent the possible discharge of pollutants and contamination from the site in the River Wensum (SAC and SSSI). Advice received from Natural England ... that subject to pollution prevention measures being clearly identified and addressed, EIA would not be necessary." I should record, in circumstances where the pollution prevention measures had not been fully identified at that stage, that the decision was not a permissible decision for the Council to make. This was because the Council could not be satisfied that the mitigation measures would prevent a risk of pollutants entering the river, when the mitigation measures were not known. However this decision is part of the history, and is not the relevant decision which is challenged in this action.
Developments in May 2010
61. By letter dated 14 May 2010 Natural England did object to the planning application. This was because there was insufficient information for them "to advise whether the proposal was likely to have significant effects on the European site in accordance with the Habitats Regulations". Natural England stated that the planning authority must require the applicant to submit information about "the hydrological connectivity between the surface water infiltration basin and drain system adjacent to the proposed lorry park, and the River Wensum SAC." Natural England noted that if the application was amended to include information, Natural England should be re-consulted for a further 21 days in accordance with Circular 06/2005. This was the Circular referred to in paragraph 78 of R(Hart), referred to in paragraph 42 above.
62. On 14 May 2010 Mr Lyon of the Council informed Crisp Maltings Group that he was very concerned that the submitted water measures would be inadequate. He expressly noted the Council's duty to protect the river from the impact of nearby development, and recorded that "it was agreed that you would look again at the issue of detail in respect of the pollution control measures that had been put forward". Mr Lyon recorded that, having looked at guidance, he was "very concerned that the submitted surface water drainage solutions may be ineffective to deal with the likely contaminants resulting from the operation of the maltings at the proposed site". He also noted that "the details submitted in respect of flood risk and surface water management produced by CEC Consulting Engineers Ltd are very sketchy and imprecise regarding the actual management train to be used to handle surface water pollutants. Advice from CIRIA suggests that the use of oil receptors should be avoided where possible primarily because of the management required to maintain the devices. Failure to properly manage the oil receptor and/or a heavy rain event could result in pollutants not being properly contained increasing the likelihood of pollutants entering the nearby local drains and then on into the River Wensum even with an infiltration basin".
63. On 28 May 2010 the Environment Agency wrote to Mr Lyon recording further concerns about the absence of a flood risk assessment, the failure to carry out proper infiltration testing (meaning that the rates of infiltration might have been too high), and that the infiltration basin needed a factor of 1:5 in addition to the factor of safety applied to the infiltration rate. It was noted that details about the adoption and maintenance of the surface water system were missing.
The July 2010 FRA
64. On 10 July 2010 Evans Rivers and Coastal Limited ("Evans") produced a Flood Risk Assessment and Pollution Prevention Strategy ("the July 2010 FRA") for Crisp Maltings Group. The production of the July 2010 FRA had included data collection, hydrological and hydrogeological assessments, surface water drainage designs and reporting. Part of the scope of the report was to "carry out an assessment of the environmental impacts of the proposals to the water environment (and provide potential solutions) including pollution risks to groundwater, surface water and the adjacent SSSI". It appears that there was a site visit by Mr Evans on 16 June 2010. The site inspection showed the presence of man-made drainage ditches, including a poorly maintained and blocked plastic pipe from the bowling green to the south of the site to the drainage ditch. The ditches were mapped in figure 4. The administrative area of the IDB was shown on figure 5.
65. In paragraph 6.1 of the July 2010 FRA and following pollution risk to surface and groundwater were addressed. At 6.1.2 it was recorded that "the pollution hazards to surface water and groundwater across the proposed site include vehicle movements (both HGV and cars); site maintenance (eg vehicle washing); staff facilities (eg toilet and restroom); and storage of fuel. The site proposals provide an opportunity to reduce these pollution risks to the water environment". It was noted that various guidance had been consulted and that there would be no infiltration of surface water from the proposed hardstanding areas of the site. It was recorded that bunding to the proposed hardstanding was suggested. It was noted that "by containing and isolating any pollution incidents across the site, this will greatly reduce the risk of pollution to adjacent areas and the SSSI".
66. The mitigation measures were set out on a drawing, and recorded in table 1 of the report. They included sealed trapped gullies, new full retention separator, a wash down and silt separator, bunding for tanks, and drain wastewater to a new sewage treatment plant with provision for wastewater to be emptied by specialist sub-contractors. Provision was made for treated surface water to reach a reed bed and attenuation lagoon. Provision was made for the onsite draining network to be closed off via a penstock system before connection with the full retention separators. It was noted that if the penstock was not activated the full retention separators will accommodate some of the discharge until they were at full capacity.
67. At paragraph 7.4 it was recorded that "it is expected that after the various treatment measures have been incorporated into the scheme, the quality of the surface water will be sufficient enough to be discharged into the IDB local drainage ditch network".
68. At paragraph 7.6 it was noted that "the maintenance of the surface water pipes, separators, rainwater harvesting tanks, attenuation lagoon and package treatment works will be the responsibility of the site operators which is understood to be Crisp Maltings. Such features can also be adopted by a management company if this is preferred".
69. In the conclusions at paragraph 8.1 it was noted that "this assessment has considered the pollution risks to the water environment and provided mitigation measures where practical". It also recorded, at paragraph 8.3 fifth bullet, that "a management plan to deal with spillages and accidents will be formulated in accordance with the relevant guidance".
70. It might be noted that the July 2010 FRA stated that the "risk of pollution" is said to be "greatly reduced" but not eliminated. It recorded that mitigation measures had been provided "where practical". The assessment recorded that "it was expected" that after various treatment measures the "quality of the surface water will be sufficient enough" to be discharged into the IDB ditch network. I also note the absence of any clear understanding about the proposed maintenance regime, which is necessary if mitigation measures are to be effective to prevent the risk of the escape of pollutants. It appears that the management plan for spillages and accidents was yet to be formulated.
The Phase II Ecological Assessment
71. In July 2010 the Phase II Ecological Assessment ("the Phase II Ecological Assessment") was produced. This was directed towards water voles, reptiles, bats and birds. The assessment recorded relevant numbers, potential effects of the construction phase, and mitigation measures.
Developments in August 2010 and the August 2010 FRA
72. On 13 August 2010 Natural England withdrew their objection to the proposed development noting that the July 2010 FRA and Phase II Ecological Survey and Ecological Assessment had "addressed satisfactorily the concerns raised in our previous letter". Mr Meadows noted in his witness statement that the mitigation measures proposed in the application "do not represent novel or untested techniques. Similar methods have and are being successfully used around the country". The approach of Natural England in the light of their statutory role is obviously important.
73. On 19 August 2010 the Environment Agency wrote to Mr Lyon of the Council. The Environment Agency recorded that it had received the July 2010 FRA, but recorded that it was maintaining its objection for a number of reasons. These included: an absence of appropriate data; the runoff rate used; the percentage increase in peak rainfall rate recorded; the absence of a cross-section of the attenuation basin and reed bed; the absence of details about future maintenance; and the desirability of using an HDPE lined reed bed.
74. In response to this further letter, and at a date which must therefore have been after 19 August 2010, a further flood risk assessment was produced in August 2010 by Evans ("the August 2010 FRA"). The format of the report was to repeat the July 2010 FRA, making some adjustments to the text, drawings and calculations. It does not appear that a further site visit was made. The main difference between the July 2010 FRA and the August 2010 FRA was that the figures for run off and peak rainfall proposed by the Environment Agency were incorporated, and a larger separator was included.
75. At 6.1.2 it was again recorded that "the pollution hazards to surface water and groundwater across the proposed site include vehicle movements (both HGV and cars); site maintenance (eg vehicle washing); staff facilities (eg toilet and restroom); and storage of fuel. The site proposals provide an opportunity to reduce these pollution risks to the water environment". It was again noted that "by containing and isolating any pollution incidents across the site, this will greatly reduce the risk of pollution to adjacent areas and the SSSI".
76. The mitigation measures were set out on a drawing, and recorded in table 1 of the report. They again included sealed trapped gullies, new full retention separator, a wash down and silt separator, bunding for tanks, and drain wastewater to a new sewage treatment plant with provision for wastewater to be emptied by specialist sub-contractors. Provision was made for treated surface water to reach a reed bed and attenuation lagoon. Provision was also made for the onsite draining network to be closed off via a penstock system before connection with the full retention separators. It was noted that if the penstock was not activated the full retention separators will accommodate some of the discharge until they were at full capacity.
77. At paragraph 7.4.1 it was recorded that "it is expected that after the various treatment measures have been incorporated into the scheme, the quality of the surface water will be sufficient enough to be discharged into the IDB local drainage ditch network". Improved calculations were used in table 2 of paragraph 7.4.
78. At paragraph 7.6 it was noted that "the maintenance of the surface water pipes, separators, rainwater harvesting tanks, attenuation lagoon and package treatment works will be the responsibility of the site operators which is understood to be Crisp Maltings". The provision about adoption by a management company was deleted and it was recorded that Crisp Maltings were already familiar with pollution incident response planning. A table setting out the maintenance regime, said to be "taken from CIRIA 697 and manufacturers guidelines", was produced.
79. In the conclusions at paragraph 8.1 it was again noted that "this assessment has considered the pollution risks to the water environment and provided mitigation measures where practical". It also recorded, again at paragraph 8.3 fifth bullet, that "a management plan to deal with spillages and accidents will be formulated in accordance with the relevant guidance".
80. A cross section of the reed bed was shown. This was drawing number 1037/RE/02A. It is relevant to record (in the light of later comments made by the IDB) that this appeared to show sloping water being contained in the attenuation pond. It is obvious that water will not be retained on a slope.
81. It might be noted that the August 2010 FRA stated, in common with the July 2010 FRA, that the "risk of pollution" was said to be "greatly reduced" but not eliminated. It recorded that mitigation measures had been provided "where practical". The assessment recorded that "it was expected" that after various treatment measures the "quality of the surface water will be sufficient enough" to be discharged into the IDB ditch network. The proposed maintenance regime was then set out, based on pre-existing guidance, and recorded Crisp Maltings Group's knowledge of pollution incident response policies.
Events leading up to the January 2011 meeting
82. On 5 October 2010 the Council's Conservation, Design and Landscape ("CDL") team submitted detailed objections to the application. This was due to the adverse impact on nationally and internationally designated sites and protected species, as well as the negative impact on landscape character. The memorandum noted on page 1 that concerns included the ecological impact including "... the proximity to the River Wensum SAC and SSSI and potential for pollution contamination via the surface water drainage system; the effect on protected species, including the loss of foraging ground and breeding sites; the impact of the proposed lighting on protected species and the countryside". The river was described, on page 2, as "... probably the best whole river of its type in nature conservation terms, with a total of over 100 species of plants, a rich invertebrate fauna and a relatively natural corridor. The river supports an abundant and diverse invertebrate fauna including the native freshwater crayfish (a European protected species) as well as a good mixed fishery".
83. The memorandum addressed the Phase I and II Ecological Assessments and the FRAs and identified various other concerns relating to local species. In the summary at page 7 it was noted that "... the integration of the ecology mitigation, landscaping mitigation and the flood risk and pollution control requirements is inadequate. The approach to the development is disjointed and the various mitigation requirements have either not been incorporated into the design or are ineffective due to other elements in the scheme".
84. Further internal discussions were had, and reports were received. For example there was an acoustic report noted in a memorandum dated 12 November 2010 showing that acceptable noise levels could be achieved. On 22 November 2010 Alan Irvine, agent on behalf of Crisp Maltings Group, wrote a letter dealing with a number of specific queries, and he identified at paragraph 3.2 that a larger capacity separator had been proposed to meet one of the matters raised by the CDL team. The letter concluded "the development proposal together with the submitted FRA demonstrates that there will be no adverse impact on the River Wensum SSSI/SAC. This is endorsed by the findings of Natural England and the Environment Agency who raise no objection to the proposal ... The proposal includes extensive measures to ensure that the landscape character of the area is protected and in addition the scheme includes significant improvements to both landscape and bio-diversity."
85. On 9 December 2010 the CDL team noted the recent submission of additional information and plans, and withdrew their objections on the basis of recommended conditions attached to the permission. Mr Harwood QC for the Claimant submitted that there was no reason for this change of mind, but the witness statement of Mr Lyon, and the documents, show that there were changes which persuaded the CDL team that it was appropriate to withdraw their objections.
86. Natural England was consulted again by the Council. On 13 December 2010 Natural England confirmed to the Council that it had no comments additional to its letter dated 13 August 2010.
The January 2011 meeting
87. On 20 January 2011 the Council's Development Committee resolved, by 6 votes to 5 with 1 abstention, to give the Head of Planning and Building Control delegated powers to approve the development, subject to the imposition of a number of planning conditions. The report to the Committee summarised objections and noted (at paragraph 32) among other objections that "current restrictions are not always observed". At the meeting itself, in the course of a very wide ranging discussion about the advantages and disadvantages of the proposed development, the local member expressed concerns regarding possible overflow from the lagoon into the River Wensum. The Team Leader stated that the applicants had done all they could to ensure that there would be no impact on the River Wensum, although this could never be 100 per cent guaranteed. The Development Manager advised the Committee that if it were minded to refuse the reason would have to be the scale of the development being detrimental to the rural character and appearance of the area. He noted "... it would be difficult to refuse on the basis of concerns regarding drainage and pollution control in the light of advice from the technical consultees."
Events leading up to the September 2011 meeting
88. It appears from the Council's letter dated 15 April 2011 to the local Member of Parliament there were a large number of complaints about the January meeting and its outcome. The Village Action Group had raised matters, and commissioned a report about transport movements. It is also right to note that there were a number of local residents who wrote supporting the proposed development, recording that Crisp Maltings Group had provided employment and done many things for the local area.
89. On 15 April 2011 Mr Meadows of Natural England emailed to thank the Council for forwarding the screening document for the proposed development. Mr Meadows noted that the Council's notes were consistent with Natural England's advice, namely that Natural England's concerns related to impacts on the river, and that there would be no objection if these concerns could be satisfactorily addressed.
90. It seems that a draft decision, providing for planning permission subject to conditions, was produced, but that a final decision was not made. It also appears from Norfolk County Council's letter dated 9 June 2011 that issues had been raised about the proposed output at the site.
91. By letter dated 10 June 2011 the Claimant's solicitors wrote on behalf of the Village Action Group complaining of a failure to comply with the EIA regimes and relevant Habitats Regimes. As was pointed out in the course of argument by Mr Lockhart-Mummery QC, some of the allegations made in the letter, for example that the Council had failed to appreciate the significance of the SAC, were wrong.
92. By letter dated 12 July 2011 the Council contacted Natural England again. On 26 July 2011 Natural England responded and said that it remained of the view that an appropriate assessment was not required. Natural England referred to their initial concerns saying "as you will be aware, we were initially concerned that the proposed site may have hydrological connectivity with the River Wensum ... (SAC), and that insufficient information had been submitted with the application to enable us to advise on any likely significant effects on the designated site ... [Crisp Maltings Group] subsequently submitted further information in Chapters 6 and 7 of the [July 2010 FRA] satisfying us that the proposed treatment and attenuation of surface water would not have a likely significant effect on the SAC. We subsequently withdrew our objection ... Natural England is satisfied that there would not be a likely significant effect on the River Wensum SAC as a result of this proposal and our advice is therefore that an Appropriate Assessment is not required" (emphasis in the original).
93. The Claimant complains that Natural England did not refer to the August 2010 revision of the FRA, which had made significant changes reducing greenfield runoff.
94. On 30 August 2011 the IDB wrote to the Council, thanking the Council for the opportunity to provide some updated comments, and noting that matters had "obviously changed significantly" since the IDB had last commented.
95. The IDB recorded that consent for discharge to the drainage ditch had not yet been obtained from the IDB, and that "as the proposed surface water discharge would be to a watercourse not maintained by the Board, then as part of any application to the Board, the applicant would also need to provide evidence that all owners of the receiving watercourse (up to the point of outfall into a Board-maintained watercourse) are agreeable to the proposed increased surface water discharge and accept any need for more frequent maintenance works. Alternatively the applicant could request that the Board en-mains the section of drain up to (or beyond) its outfall, but any such request would have to be discussed at a Board meeting, and it cannot be guaranteed that the Board would agree to this".
96. Potential difficulties in the way of obtaining consent from the Board were noted including "the known issues with the syphon which takes water in the Board-maintained watercourse under the River Wensum ...". It appears (from the maps and drawings in the Ecological Assessments and the FRA's) that the IDB's watercourse passes under the River Wensum. The IDB also said "With regard to a few other points in the FRA, while this may not make a significant difference, the climate change figure used in figures 16 and 17, and which informs the text on pages 26, seems to be only 20%, as opposed to 30% elsewhere in the document. Following on from this, given the site's sloping nature, and the fact that I cannot see any details of finalised levels for the parking areas, I think it is a little presumptuous to state that the excess water between a 1 in 30 year rainfall event and a 1 in 100 year event will be evenly stored to a depth of 3cm - in reality the exact extent and depth of surface water ponding will depend on the finished parking area levels and surface water drainage points, as the water will naturally collect in the lowest points. Along similar lines, while this may only be an indicative design, the section through the reed bed and attenuation lagoon ... cannot be correct, as the water level will not follow the slope of the bed of the lagoon/existing ground level (as it is currently shown to do)."
97. The letter went on to note surface water flooding risk and planning requirements noting that the IDB was not convinced that the plan met requirements to show that surface water disposal solution would not increase the risk of flooding to any other party. The letter continued "While I appreciate that it may not be practical to require these issues to be resolved prior to your determination of this application, if you are minded to approve the proposals, I would strongly request that you impose suitable conditions requiring all necessary discharge consents to be obtained and copies submitted to you, and requiring details of the proposed finish levels of the development and surface water drainage systems to be prepared, such that they all have to be submitted and approved by you prior to developments works on site". In the final paragraph of the letter the IDB noted that the Council might be liable for any adverse effects of surface water run off "particularly where concerns may have been raised as part of the planning process." This comment is relevant not because of the accuracy, or inaccuracy, of the comment about the potential legal liability of the Council, but because the IDB were sufficiently concerned about the risk of adverse effects of surface water run off to make the comment.
98. On 2 September 2011 the Council asked the Claimant's solicitors for comments on legal issues arising from the report, which was forwarded to them. There was no reply before the meeting.
The September 2011 meeting
99. On 8 September 2011 the application was returned to the Council's Development Committee in the light of the passage of time and the extensive representations made, notwithstanding that it was considered to be lawful to exercise the delegated powers to approve the application. The report noted extensive representations against the proposed development (including concerns about "light pollution, noise pollution, the storage of hazardous fuel, environmental degradation, wildlife habitat destruction, water table and river pollution"), and extensive representations in support of the proposed development (including the fact that "... additional storage would enable increased malting barley supplies to be sourced from the local economy ie local growers during the harvest period").
100. Wildlife impacts were assessed, and the late discovery of a badger sett was noted, as was the fact that there was likely to be a small net benefit for the badgers. Considerations relating to an EIA and Appropriate Assessment were addressed from page 5 of the report. In relation to the Habitats Directive the response from Natural England to the effect that an Appropriate Assessment was not required was noted, as was the fact that Natural England confirmed that this was their formal response pursuant to regulation 61(3) of the Habitats Regulations. The report continued: "Officers have approached this issue of any likely significant effect on a precautionary basis and considered whether there is any probability or risk that the proposal will have significant effects on the SAC, whether individually or in combination with any other project. Officers agree with the conclusions of Natural England in light of all the information that has been submitted." The Council's officers concluded that: "subject to the imposition of conditions to ensure that the proposed mitigation measures are carried out ... no appropriate assessment is required in light of all the information that now exists".
101. In relation to the EIA Directive the officers noted that their "... view remains that the proposal is not EIA development on the basis that there are not likely to be significant environmental effects. This view takes full account of the site's location and proximity to the designated sites and all the representations and evidence received to date. The Officers' view is supported by the recent response from Natural England dated 26 July 2011 in respect of the SAC which confirms that, in their opinion, there would not be a likely significant effect on the River Wensum SAC ... as a result of this proposal if the proposed mitigation measures are put in place. The Officers consider the same conclusion is appropriate in respect of the SSSI and in respect of the environment generally".
102. Under drainage the recent comments of the IDB were noted and exhibited and it was said that "further consideration will be given to the points raised by [the IDB] in their response and Committee will be updated orally in this respect at the meeting."
103. The Officers' recommendation was approval subject to the imposition of appropriate conditions. As was pointed out in the course of argument by Mr Lockhart-Mummery QC, the draft conditions proposed by the Council's officers did not include what became conditions 23 or 24.
104. The meeting took place at the Council Chamber in Cromer at 9.30 am on 8 September 2011. There were a number of persons speaking, both objecting to and supporting the application. The Council's Team Leader, among other matters, referred to the Habitats Regulations and said that Natural England had considered that, subject to the proposed mitigation, there would not be a likely significant effect of the river and that an Appropriate Assessment was not required. He referred to the EI Regulations, and noted that Natural England had previously advised that an EIA was not required. He recorded that the IDB had confirmed that it would be necessary for Crisp Maltings Group to obtain consent to discharge into the watercourse. The Development Manager asked the Committee to decide whether it agreed with the Officers' views in respect of the Appropriate Assessment and EIA. Having considered the Officer's report and the issues the Committee indicated its agreement by 9 votes to 0 with 1 abstention.
105. There was then a discussion by Councillors. In the course of that one of the Councillors spoke and noted that she was a member of the IDB. She expressed concern that there "... could be substantial run-off from the site into the River Wensum." The Team Leader responded noting that the IDB had noted that Crisp Maltings Group would require consent to discharge to the watercourse. He continued "A number of conditions had been suggested and additional conditions would be imposed in respect of land levels. The key issue was to ensure that there would be no adverse impact on the River Wensum. It was impossible to give a 100% guarantee that there would never be a pollution incident but every effort had been made to ensure that all matters had been considered and appropriate mitigation measures put in place. Officers were satisfied that the concerns could be addressed by appropriate planning conditions."
106. The Councillor from the IDB requested that water monitoring be carried out over a period of time to assess whether there were any pollution issues. The Team Leader stated that a condition could be added to require monitoring to be carried out. Motions to refuse the application on one ground was refused, in the light of advice from the Planning Legal Manager about the absence of evidence to support it, and another motion to refuse on another ground was defeated 10 to 2 votes. The resolution to approve planning permission subject to appropriate conditions was carried out 10 votes to 2.
107. There was a brief discussion about another unrelated application for planning permission and the meeting closed at 11.15 am.
The grant of planning permission and conditions
108. The Notice of Decision by the Council was dated 13 September 2011. The proposed development was permitted subject to a number of conditions which were specified. Condition 13 provided for the scheme to include the reed bed and attenuation basin, with a restricted outfall with the reduced run off rate to the IDB watercourse "with prior agreement from the" IDB.
109. Condition 14 was:
"Prior to the implementation of the surface water drainage scheme required under Condition 13, details of the future adoption and proposed maintenance regimes for the surface water drainage scheme shall be submitted to and approved in writing by the Local Planning Authority."
110. Mr Harwood QC on behalf of Mr Champion complains that this does not require Crisp Maltings Group to implement the scheme. Mr Lockhart-Mummery QC, on behalf of Crisp Maltings Group, offered a proposed undertaking to meet this point. The proposed undertaking was that:
"Should the Court so require, Crisp will give an undertaking that, should it implement the planning permission dated 13 September 2011, it will within 6 weeks of such implementation execute a planning obligation under section 106 of the Town and Country Planning Act 1990 to oblige it to implement the maintenance regime approved by the District Council under condition 14 of the planning condition".
111. Mr Harwood QC noted that this meant that Crisp Maltings Group could sell the site, with the benefit of this permission, and the undertaking would not bind the successor when the successor implemented the scheme. Mr Lockhart-Mummery QC noted the complete absence of any evidence to suggest that Crisp Maltings Group would sell the site, and it is right to record that they have been an established and important business in the area for a very long time.
112. There were two other conditions which are relevant to note. These were conditions 23 and 24. These provided:
"23. No development ... shall be commenced in relation to the development ... until such time as details of a scheme to monitor water quality in the drainage network between the proposed outflow pipe from the attenuation lagoon and the point of discharge into the River Wensum has been submitted and approved in writing by the Local Planning Authority ..."
To ensure that there is a proper assessment of water quality so as to be able to identify and prevent diminution of water quality and consequent potential harm to the River Wensum [SSSI] and [SAC] ... taking account of the [EIA] Directive and Habitats Directive, as transposed into national law
24. In respect of the requirements of Condition 23, in the event that water quality diminishes and the diminution in water quality is considered to be attributable (either in part or in whole) to the lorry park and associated development hereby permitted, the applicant or successors in title shall initially take all reasonable steps to prevent water quality diminishing to such an extent that it could have a significant adverse impact on the River Wensum [SSI] and [SAC] ...
To ensure that, in the event of water quality diminishing as a result of the proposed development, necessary steps are taken to restore water quality and prevent consequent harm to the River Wensum [SSSI] and [SAC] ... taking account of the [EIA] Directive and Habitats Directive, as transposed into national law."
113. Circular 11/95 sets out a number of tests for planning conditions to be imposed. It was noted that conditions should only be imposed if they are, among other requirements, "necessary".
THE CLAIM AGAINST THE COUNCIL
Power in the Development Committee
114. The Council's Development Committee had legal power, pursuant to the Local Government Act 2000 and the Local Authorities Regulations 2000 to decide that it was not necessary to obtain an Appropriate Assessment or an EIA. This is because it is common ground, pursuant to the provisions of schedule 1 of the Local Authorities Regulations 2000 that the Committee had functions "to determine application for planning permission" and had "duties relating to the making of determinations of planning applications", and, pursuant to section 48(4) of the Local Government Act 2000 had power to do "anything which is calculated to facilitate, or is conducive ... to the discharge of those functions".
115. It is true that the power to decide not to get a Habitats Appropriate Assessment or an EIA is not set out in the functions in column 1 of schedule 1. However this did not need to be specified because deciding whether to get a Habitats Appropriate Assessment or an EIA is "conducive or incidental to" the grant of planning permission. This means that the Committee had power to decide whether to get a Habitats Appropriate Assessment or an EIA.
Internal inconsistency and irrationality in the Council's decision
116. The decision about whether to require a Habitats Appropriate Assessment or an EIA was for the Committee to make on 8 September 2011. As appears from the factual background set out at length above there were a number of matters that could be relied on to provide assurance that there was no risk of pollutants entering the river, where the evidence established that they would be likely to have a significant effect on the species and habitat. In particular Natural England, the Environment Agency, and the Council's officer, had considered "tried and tested" methods of mitigation proposed by experts instructed on behalf of Crisp Maltings Group, and were satisfied that there was no relevant risk.
117. However there were a number of matters which pointed the other way. The maintenance regime in the July 2010 FRA was not developed at all, see paragraph 68 above, and in the August 2010 FRA it appears that the maintenance regime had been put together from guidance rather than any detailed discussion with Crisp Maltings Group, see paragraph 78 above. The wording emphasised in paragraphs 70 and 81 above suggests that there might have been residual risks. The issue of consent for water outflow had not been resolved with the IDB. The IDB had raised issues about designs of the reed bed and the slope of the water on the pond, see paragraphs 95, 96 and 97 above. It is right to say that one of the drawings was only an indicative design, but that cuts both ways, because it could also suggest that there was more work to be done to exclude risk. The IDB was sufficiently concerned about one type of flooding to make a specific comment about it, see paragraph 97 above.
118. The Committee, as the decision making body, was entitled to take a view about these matters. The first decision, not to have an Appropriate Assessment or an EIA suggested that the Committee thought that there was no relevant risk. This would have been a rational and reasonable conclusion available to the Committee, in the light of the detailed matters set out above.
119. However the Committee also decided to impose a requirement for testing of water quality to ensure pollutants were not contaminating the river, and a scheme for remediation in the event that they did. These conditions, which could only be imposed where the Committee considered them necessary, suggested that the Committee considered that there was a risk that pollutants could enter the river. This would also have been a rational and reasonable conclusion available to the Committee, in the light of the detailed matters set out above.
120. It does not seem to me that the Council could, rationally, adopt both positions at once. Although Ms Dehon put the matter as persuasively and fairly as it could be put, I do not consider that it is open for me to consider that this inconsistency was simply a function of local democracy at work, and that it could be ignored. Having looked very carefully at all the material relating to risk, and having set much of it out in the judgment above, I do not consider that it can be said, as Mr Lockhart-Mummery sought to say, that the decision to impose conditions 23 and 24 was irrational.
121. I do not think in these circumstances that the decision can be saved by exercising a discretion not to quash the decision. The Committee will have to consider whether it considers that there is no relevant risk of pollutants entering the river. If there is no risk, the Committee can grant planning permission, but will not be entitled to impose conditions 23 and 24. If there is such a risk the Committee will have to require an Appropriate Assessment and an EIA to be obtained.
122. For this reason it seems to me that the Council's decision dated 13 September 2011 must be quashed. The Committee can then consider any amendments to condition 14.
123. I should record that there was nothing in the materials set out above to show that an Appropriate Assessment or an EIA should be required on account of noise, light and other pollution risks, which was the Claimant's ground 2.
No quashing of consultation response by Natural England
124. Natural England did not apply the wrong standard of "no likely significant risk" when deciding whether an appropriate assessment was required. Natural England had used the statutory wording. Natural England had referred in correspondence to circulars which made it clear that Natural England was aware of the appropriate test in Waddenzee. I agree that the conclusion reached in paragraph 78 of R(Hart) is the proper conclusion to be applied in this case. This disposes of the first issue against Natural England.
125. In these circumstances there can be no question of Natural England having applied the wrong standard, and that disposes of the second issue against Natural England. I therefore dismiss the claim against Natural England.
126. I also record that there was no principled reason advanced to me to justify the continuation of proceedings against Natural England. The decision by Natural England did not alter the rights or remedies available to the Claimant. There were numerous other bodies, consulted by the Council along the way to the grant of planning permission. The Claimant, rightly, did not bring proceedings against those bodies. An unnecessary duplication of proceedings, particularly in environmental litigation which must be affordable, is to be avoided.
127. For the reasons given above the Council's decision dated 13 September 2011 is quashed, and the relevant body will have to consider whether it considers that there is no relevant risk of pollutants entering the river. If there is no risk planning permission may be granted, but conditions 23 and 24 may not be imposed. If there is such a risk, an Appropriate Assessment and an EIA will have to be obtained. I have referred to relevant body because the Council will have to decide who is to make the relevant decisions. The Development Committee does have power to make the relevant decision.
128. The claim against Natural England is dismissed. The proper test was applied. There was nothing in the material before me to indicate that it was necessary to bring proceedings against Natural England and unnecessary duplication of proceedings, particularly in environmental litigation which must be affordable, is to be avoided.