R (Loader) v Secretary of State for Communities & Local Government

Transcript date:

Tuesday, December 6, 2011



Court of Appeal

Judgement type:

Permission renewal


Richards LJ

Transcript file:

Case No : C1/2011/2222 
Neutral Citation Number: [2011] EWCA Civ 1678

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 6th December 2011


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R on the application of Loader 
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Secretary of State for Local Government and Others


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(DAR Transcript of 
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Mr James Pereira (instructed by Richard Buxton) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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(As Approved by the Court)

Crown Copyright © 
Lord Justice Richards:

1. This is a renewed application for permission to appeal against an order of Lloyd Jones J dated 28 July 2011 by which he refused the applicant's applicant for judicial review. I have decided to give permission to appeal. I will state my reasons very briefly, even though I am differing from the position taken by Sir Richard Buxton when he refused permission on the papers and gave detailed reasons for that decision.

2. The central issue is the test to be applied in determining whether a development "is likely to have significant effects on the environment" within the meaning of the EIA regulations which implement directive 85/337/EEC. The applicant's case is that the test to be applied under EU law is in line with that in guidance issued by the EC Commission of 2001, in one part of which it is stated that a useful simple check is to ask whether the effect is one that ought to be considered to have an influence on the development consent decision. That is narrower than the approach taken by the Secretary of State in reaching the decision under challenge in these proceedings and I think it fair to say that it is narrower than the approach generally applied in this country. It was accepted before the judge, as appears from paragraph 30 of his judgment, that the Secretary of State had not taken the applicant's approach and that the decision would have to be quashed if the applicant's test was correct.

3. Lloyd Jones J set out some cogent reasons for rejecting the applicant's test; Sir Richard Buxton added to them in his reasons for refusal on the papers. The test did not commend itself to this court in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 where the same essential point was advanced; but the arguments in that case do not appear to have been as detailed as those developed in the present case and the court expressly avoided making any final decision on the point, so that the observations it made in relation to it were obiter (see per Moore-Bick LJ at paragraphs 18 to 19).

4. Taking into account the EU backdrop to all this, it seems to me that the issue is one of sufficient importance to merit an authoritative and fully reasoned ruling by this court in a case where, as here, the lawfulness of the decision under challenge turns directly on the point. I note that when granting permission for the judicial review proceedings to be brought in the first place, Sullivan LJ described the issue as being undoubtedly one of general importance. In my judgment there is a compelling reason for an appeal to be heard in relation to it.

5. The other issue that the applicant seeks to raise is the standard of review of the decision as to whether a development is likely to have significant environmental effects. The established view is that such a decision is reviewable by the court only on grounds of Wednesbury reasonableness. The applicant submits that this gives the decision-maker too wide a discretion which is incompatible with the precautionary principle under EU law.

6. I am not satisfied that this arises as a discrete issue in the case, for the simple reason that the lawfulness of the Secretary of State's decision stands or falls on the correctness of the test propounded by the applicant for determining whether a development is likely to have significant effects on the environment. As I have said, it was accepted below that the decision would have to be quashed if the applicant's test was correct. The standard of review to be applied by the court does not on the face of it arise as a separate question.

7. But it does seem to me that the arguments on standard of review are directed in part to the extent of discretion enjoyed by the decision-maker as a matter of EU law and are to that extent bound up with the first issue as to the correct test. One sees this in the formulation of ground 3 of the grounds of appeal. I think that the applicant should be allowed to develop the argument in that way, and if I were to try to cut down the grounds on which permission was granted there would be a risk of my creating an artificial limitation on the way in which the submissions are put.

8. Accordingly, I take the view that I should grant permission to appeal without limitation as to grounds but leaving it to the court on the hearing of the appeal to ensure that the argument does not extend beyond the confines appropriate to the particular circumstances of this case.

9. For those reasons the application before me is allowed. I will direct a constitution of three Lord/Lady Justices and a time estimate of one day.

Order: Application granted