Neutral Citation Number:  EWHC 872 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Thursday, 11th March 2010
B e f o r e:
MR JUSTICE STADLEN
THE QUEEN ON THE APPLICATION OF LOADER
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
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Mr James Pereira (instructed by Messrs Richard Buxton & Co) appeared on behalf of the Claimant
Mr James Maurici (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
J U D G M E N T
(As approved by the Court)
1. MR JUSTICE STADLEN: It is now 1 o'clock. This application for permission for judicial review has been going on for an hour and 40 minutes. The estimate for this application was 30 minutes. At the beginning of the application, counsel for the applicant said that he thought he would be 20 minutes. In fact he was an hour.
2. This is a complicated detailed application for judicial review of a planning decision. There is a bundle running to 384 pages. There are significant skeleton arguments and acknowledgment of service summary grounds of resistance. Even on the basis of significant pre reading, in my view it was obvious and should have been obvious to both counsel that this case was going to take far more than half an hour.
3. This is a busy oral applications list and it is well known that, where applications are under estimated, it can have the effect of completely disrupting the business of the court. It is the practice of the court, and it is going to be increasingly implemented, that, where a time estimate for a case is materially under estimated, depending on the state of the list, the case will simply be taken out of the list and adjourned to another day. I did not take that course this morning because, as it happens, another case, which did have a long estimate, has been removed from the list. But the fact that that sometimes happens is not a reason why inaccurate estimates should be given or why there should not be notified to the court changes in estimates. It is thoroughly to be deprecated. It is unfair to other litigants and it puts the court in an impossible position.
4. The application is for permission to apply for judicial review of a determination by the defendant that the proposals in respect of which planning permission was refused by the local authority, the first interested party, were not likely to have significant environmental effects for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 ("the EIA Regulations") so that an EIA was not required. The claimant challenges that decision in these proceedings and the defendant has agreed to stay the public inquiry pending the outcome of these proceedings.
5. There were initially three grounds but the second was withdrawn. The first ground raises two issues. The first issue turns on what is the threshold for "significant environmental effects" within the meaning of Article 2(1) of the EIA directive, which provides that:
"Member states shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects."
6. Guidance was given by the European Commission in the document headed "Guidance on EIA screening", June 2001, and, in addressing the checklist of criteria for evaluating the significance of environmental effect, it said:
"Those responsible for making screening decisions often find difficulties in defining what is 'significant'. A useful simple check is to ask whether the effect is one that ought to be considered and to have influence on the development consent decision. At the early stage of screening there is likely to be little information on which to base this decision but the following list of questions may helpful..."
Then a series of questions is set out.
7. Mr Pereira for the claimant submits that it is at any rate arguable that either the definition in Article 2(1) of significant effect is as a matter of law that set out in the guidance, namely the question of whether an effect is significant is whether it ought to be considered and have an influence on the development consent decision, or that, if that is not in fact as a matter of law the correct test, then a local authority and/or the Secretary of State on appeal is bound by that definition. Mr Maurici for the defendant did not accept that, but, for the purpose of the application for permission for judicial review, accepted that it is arguable that that is in fact the correct test.
8. In this case, the submission on this ground is that either the Secretary of State did not apply that test or, if he did apply that test, it was Wednesbury unreasonable for him to reach the conclusion he did which was in the negative.
9. The conclusion is set out in a screening checklist and in the answers to that screening checklist, which run to some 27 answers. In answer to my question "what were the matters relied on in support of the submission that the conclusions reached were arguably Wednesbury unreasonable", Mr Pereira was able only to identify two matters, the answers to questions 19 and 23. In respect of 19, the question was: are there any areas or features of historic or cultural importance on or around a location which could be affected by the project? The answer was "not likely to result in a significant effect". "Why?" Answer: "The development would not have significant effects on the setting of the listed building". Then in 23: "Are there any areas on or around the location which are densely populated or built up which could be affected by the project?" Answer: "No significant effect". "Why?" Answer: "Because 41 sheltered housing development and replacement bowls club/facility would not have significant effects".
10. In respect of question 19, he relied on the fact that the decision under appeal by the local authority concluded explicitly that "The proposal would be out of character and detrimental to the street scape and separately joining listed terrace and would be contrary to certain policies" and, in the absence of reasons, it is to be assumed that no reasonable defendant could have reached the conclusion he did. He put it another way in reply, in the light of the concession made for these purposes by Mr Maurici, which is that, given that the Secretary of State was said in the acknowledgment of service not to have implemented the guidance but to have had full regard to it, arguably therefore the Secretary of State applied the wrong test and therefore the question of Wednesbury unreasonableness does not come into it; the question is whether, even though he applied the wrong test, it is not arguable that he reached the wrong conclusions. Alternatively to that way of putting the case, he relied on a proposition that insufficient reasons were given to satisfy the requirement to give reasons as set out in the decision of case C 75/08 Mellor v SSETR, where it was said that the touchstone of lawful reasons is that they should provide "full knowledge of the relevant facts".
11. So far as the latter point is concerned, it turned out in the course of submissions by Mr Maurici, who drew my attention to a letter written by the Secretary of State at an early stage of the process, that in fact detailed reasons were given. They were set out in a letter dated 4th August 2009 in answer to a request for detailed reasons as to how the conclusion was reached. Reference was there made to the indicative criteria and thresholds in schedule 3 to the 1999 regulations and, by reference to four bullet points, the matters identified in those regulations were addressed and it was explained why they were satisfied. In my judgment, it is perfectly plain that those reasons are perfectly adequate within the legal requirement for giving reasons and that they are such as to satisfy the Wednesbury test, if that is the correct test. Even if, as submitted in reply by Mr Pereira, it is arguable that the wrong test was applied and even if it is arguable for that reason that the Wednesbury test is not the right test and the question is is it arguable that, had the Secretary of State applied the right test, he in fact came up with the wrong answers, in my view, having regard to that material, the answer is no, it is not arguable.
12. There is an inevitable element of judgment involved in answering the question of significant effects whether that is by reference to the test set out in the guidance or not because, even applying the test in the guidance, the question of whether an effect is one that ought to be considered and to have an influence on the development inevitably involves a question of judgment and, having regard to the careful consideration of the matters identified in the regulations and the facts set out in those four bullet points, in my judgment it does not make a difference whether the Secretary of State was applying the guidance test or merely applying the words "significant effect". In my judgment, there is nothing in this point nor in the reasons point.
13. The third ground, and I come back to the second aspect of the first ground, was that the Secretary of State was wrong in regarding the proposal as a redevelopment whereas policy PPS3 excludes from the definition of previously developed land:
"Land in built up areas such as parks, recreation grounds and allotments, which, although it may feature paths, pavilions and other buildings, has not been previously developed".
This was a development of a bowling green and it is said that that therefore should be excluded from the definition of previously developed land.
14. In answer to that, Mr Maurici relied on the letter to which I have already referred of 4th August 2009 in which the Secretary of State, in addressing the question of whether developments proposed for sites which have not previously been intensively developed are more likely to require EIA if they would provide a total of more than 10,000 square metres of new commercial floorspace or development with urbanising effects in a previously non urbanised area, said, in its first bullet point:
"The current use of the site is as a bowls club and so the land has already been developed and use of the bowling club already established."
so that this matter was taken into account in that respect and he says that PPS3 is raising a different question. In my judgment, there is no arguable merit in ground 3.
15. That leaves the second part of ground 1, which is whether the defendant acted lawfully in relying on mitigation measures when making its decision in the case. There was a particular concern in the approach taken to asbestos contamination in the site and the defendant, in his decision in answer to question 3 of the screening checklist "will the project involve use, storage, transport, handling or production of substances or materials which could be harmful to human health or the environment or raise concerns about actually perceived risks to human health?", answered the question "no". Question, "Why". Answer: "Mitigating schemes regarding the removal of asbestos can be implemented to avoid the threat to human health". In short, what is submitted is that there is no evidence to support the conclusion that the use of conditions for dealing with this problem would be a satisfactory or sufficient way of dealing with that objection to the development.
16. My attention was drawn by counsel for both parties to the decision of the Court of Appeal in Catt v Brighton and Hove City Council  ENV LR 37 at paragraph 34, where Pill LJ said:
"... there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence. There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion. It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required. An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment, and a planning judgment made."
17. Mr Pereira submits that in this case the claimant points not to a mere uncertainty but to a complete lack of any information on which she is able to understand and judge the legality of the defendant's reliance on mitigating measures for the purpose of decontaminating the site and, in answer to that, the defendant relies on a submission by the second interested party, the developer, in support of his appeal dealing with asbestos, that:
"Substances which are potentially harmful to human health, including asbestos, will be handled during the demolition of the existing bowls club buildings. Relevant environmental standards will be adhered to and there will be no large change in environmental conditions. The effect will not extend over a large area. No people and no other receptors will be affected. There will no breach of environmental standards. There will no effect on valuable or scarce resources. There will be no significant effect."
18. The question in my judgment is whether it is arguable that the decision of the Secretary of State in this regard can be challenged on the basis either that his decision was irrational or that insufficient reasons were given to justify it or that it was not based on any or any sufficient evidence. The answer to that given by Mr Maurici was that the defendant was entitled to accept the submission by the second interested party.
19. This is the aspect of the case that has given me most pause for thought and concern. I am conscious of the thrust of the guidance of Pill LJ in Catt. However, it seems to me, with some reservation but bearing in mind the comparatively low threshold of arguability, that there is force in the submission that there is no evidence of the decision having been taken by reference to any evidence on this point. It was submitted to me that the question of asbestos can always be dealt with at a later stage when considering whether conditions should be imposed but that does not seem to me a satisfactory or sufficient answer to this point because, if that were right, it would effectively mean that there could never be a case in which there was a requirement for an EIA on an asbestos matter at an earlier stage of the appeal process. It may be that the decision was taken because the Secretary of State accepted the submission of the second interested party. It may be that there was some evidence beyond that which the Secretary of State had regard to (it may for example be that he had regard to the nature and size of the existing building). I know not, but it seems to me, in circumstances where the claimant is given absolutely no indication as to the basis on which the decision was taken, whether it was taken on any evidence and, if it was taken by accepting the developer's submission or assertion, whether any proper consideration was given as to the merits of that assertion, there is an arguable claim on this very narrow and limited basis.
20. I, of course, take into account that the effect of that is that it will delay the planning inquiry, which is undesirable, but nonetheless it seems to me that as this is a comparatively narrow point, it ought to be capable of being dealt with very quickly by a judicial review. Indeed, it is not inconceivable that the Secretary of State will seek to avoid the need for this matter going further by issuing further reasons for his decision which may satisfy the claimant, in which case it may be that this claim for judicial review will not need to be proceeded with, but, subject to those comments, it does seem to me that on this very narrow and particular point permission should be granted and I grant it.
Are there any consequential matters?
21. MR MAURICI: No, my Lord.
22. MR JUSTICE STADLEN: Thank you very much.
23. MR MAURICI: I apologise again for the case overrunning.
24. MR JUSTICE STADLEN: Right. Well, costs reserved?
25. MR MAURICI: My Lord, yes.
26. MR PEREIRA: Yes.
27. MR JUSTICE STADLEN: Thank you very much.