The question as to “what is the project?” for the purposes of environmental impact assessment has been arising a lot since R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023), which I summarised in my 11 February 2023 blog post The Bridge To Nowhere Case. The facts in that case were stark but people have been worrying about how far to extrapolate the principle.
Perhaps this week’s ruling by the High Court in R (The Llandaff North Residents’ Association) v Cardiff Council (HHJ Jarman, 10 July 2023) may alleviate concerns.
Briefly, the Cardiff local development plan has allocated a large area north west of Cardiff for development, including at least 5,000 homes. Redrow Homes had been granted planning permission to build just under 6,000 homes on part of the allocation. To quote from the judgment:
“The application was accompanied by an environmental statement (ES) which stated that Dŵr Cymru had confirmed that the significant volume of foul sewage which would be generated by the proposal could be accommodated on its network, but a hydraulic modelling assessment (HMA) would be needed before the extent of infrastructure improvements and storm water removal from the network could be finalised. Outline permission was granted on the application in March 2017, condition 24 of which required a HMA to be approved.”
“Dŵr Cymru [the statutory undertaker with the responsibility of providing a sewerage system under the Water Industry Act 1991] in November 2021 submitted an application to build a pumping station to serve the developer’s proposal. This would comprise a pumping station at the north end of a large open space called Hailey Park to the east of, and on the banks of, the River Taff. The site of the pumping station is about 1Km away from the site of the developer’s proposed development. Also included in the application is a valve kiosk on the other side of the river. What is not included is a pipe under the river to connect the two, as Dŵr Cymru proposes to use permitted rights to construct it. The authority granted that application in September 2022.
At the same time, the authority granted an application made by the developer to discharge condition 24 after a HMA had been obtained. Two applications were made, because of re-design, and each was granted by the authority, the latest one in September 2022.
The claimant is an association of residents of Llandaff North, which adjoins Hailey Park to the east. With permission granted by Steyn J, it challenges both decisions of the authority to grant planning permission for the pumping station and to discharge condition 24.”
“The application was accompanied by a planning statement by Dŵr Cymru’s consultants, Arup, which stated that the need for the proposed development “derives from” the grant of planning permission for 6000 homes at Plasdŵr. Arup submitted a screening request in relation to the sewage scheme which was being provided for that development, recognising that it was “effectively part of” that development on the basis that it would provide that additional capacity needed “to serve the increase in the local population size.” Arup considered the proposed development to be listed as Schedule 2 development and identified several potential impacts, including to protected sites of international significance such as those located on the Severn Estuary, but did not consider the impacts to be significant.
The authority issued a negative screening opinion on the basis that the sewage scheme and the residential development are stand-alone projects, and gave several reasons. The two schemes would not be located on adjacent land. The former was being undertaken by Dŵr Cymru and the latter by the developer. The former was being undertaken not only to serve the latter but also other existing and potential developments in the area so that there was a functional relationship between the two but no functional interdependence. The former was considered to be the project for EIA purposes and did not exceed the thresholds set out in Schedule 2. Accordingly, the authority did not consider whether any potential impacts would be significant. A separate screening opinion was issued in respect of the pumping station, which mirrored that in respect of the sewage scheme.”
The claimant’s first two grounds of challenge were as follows:
“i) The authority failed to take into account that there is functional interdependence between the Plasdŵr development and Dŵr Cymru’s application and wrongly took into account that the pumping station will serve other developments in the area;
ii) The authority failed to consider an integral part of Dŵr Cymru’s proposal, namely a scheme to remove surface water from its network thus increasing its capacity for foul sewerage. So considered, the scheme as a whole would amount to Schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017 (the EIA Regulations) requiring an environmental statement (ES)”.
So, we are back to the question of “what is the project?” Did the pumping station proposal require EIA because it was part of a larger project (the Redrow development) which had been the subject of EIA?
His Honour Judge Jarman summarised the caselaw:
“In R (Ashchurch Rural Parish Council) v Tewkesbury BC [2023] EWCA Civ 101, Andrews LJ, giving the lead judgment, said at [74] that the term “project” should be interpreted “broadly, and realistically”. At [80], she added that the identification of the project is based on a fact-specific inquiry.
What constitutes the project is a matter of judgment for the planning authority, subject to challenge on grounds of rationality or other public law error. Lang J in R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin) at [64] after a review of the authorities, identified four criteria against which that judgment may be made: (i) whether two sites are owned or promoted by the same person; (ii) simultaneous determination; (iii) functional interdependence; and (iv) stand-alone projects. These were cited with approval in Ashchurch at [81] as “a non-exhaustive list of potentially relevant criteria, which serves as a useful aide-memoir.”
These criteria were recently considered by Holgate J in R (Together against Sizewell C Ltd) v SSESNZ [2023] EWHC 1526 (Admin). At [73-4], he said:
“The weight to be given to them will depend upon the circumstances of each case and is a matter for the decision maker.
Interdependence would normally mean that each part of the development is dependent on the other, as, for example, in Burridge v Breckland District Council [2013] JPL 1308 at [32] and [42].“
At [70], Holgate J pointed out that an irrationality challenge presents a high threshold:
“The threshold for irrationality in the making of such a judgment is a difficult obstacle to surmount (see e.g. Newsmith Stainless Limited v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1126).
Although two sets of proposed works may have a cumulative effect on the environment, this does not make them a single project for these purposes. Two potential projects but with cumulative effects may need to be assessed, see R (Larkfleet Ltd) v South Kesteven DC [2015] EWCA Civ 887, Sales LJ (as he then was) at [36]…”
If I can pause there, the recent Sizewell case cited by HHJ Jarman was an interesting example of the courts’ regular attempts to avoid EIA becoming an impossible obstacle course. There the argument by the claimants was that the Sizewell C nuclear power project should be defined for the purposes of the Conservation of Habitats Regulations as encompassing proposals by Northumbrian Water Limited to provide the significant amounts of potable water required during the construction, commissioning and operational phases of Sizewell C
Holgate J had this to say:
“The claimant’s argument has much wider implications. The need for the supply of utilities such as water is common to many, if not all, forms of development. A utility company’s need to make additional provision so as to be able to supply existing and new customers in the future does not mean that that provision (or its method of delivery) is to be treated as forming part of each new development which will depend upon that supply. The consequence would be that where a new supply has yet to be identified by the relevant utility company, decisions on those development projects would have to be delayed until the company is able to define and decide upon a proposal. That approach would lead to sclerosis in the planning system which it is the objective of the legislation and case law to avoid (R (Forest of Dean (Friends of the Earth)) v Forest of Dean District Council [2015] PTSR 1460 at [18]).
By way of a side-bar on this whole EIA sclerosis question, we all of course also await the Supreme Court’s ruling in R (Finch) v Surrey County Council on the question of whether it was unlawful for a local planning authority not to require the environmental impact assessment for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of downstream greenhouse gas emissions resulting from the eventual use of the refined products of the extracted oil. The hearing took place on 21 and 22 June and if you have a couple of days spare (maybe you are between projects), you can watch it all here. By way of reminder, this was the Court of Appeal’s ruling, dated 17 February 2022.
Back to the Cardiff case. What did HHJ Jarman conclude on the facts? He found that the council’s planning officer was entitled to deal with the issue in the way that they had. “The fact that the pumping station is needed for the Plasdŵr development does not mean that it will not also serve other existing and potential developments in the area, and the officer and the authority were entitled to have regard to those matters. The high threshold of irrationality in this approach has not been surmounted.”
This is a helpful reminder both of how extreme the facts need to be (as they were with the bridge to nowhere) in order for a decision maker not to be able to conclude that works are not an integral part of a larger project and of the reluctance of the courts to interfere with the planning judgment reached on such issues by the decision maker.
I hope that calms some nerves.
I’m not sure nerves will have been calmed at DLUHC by publication on 14 July 2023 by the House of Commons Levelling Up, Housing and Communities Committee of its Reforms to National Planning Policy report. Let’s just say that when it comes to the Government’s proposed reforms, the Committee has not been getting with the project…
More on the report’s findings from the rest of your social media I am sure.
Finally, I’ve reluctantly got with another project. Having decided not to use Twitter since last November, I have signed up with the Meta alternative, Threads. It’s not perfect but if it places real pressure on Twitter to retreat from the harmful changes made since Elon Musk acquired that company, so much the better. There are already plenty of familiar names on the Threads app and, if you can bear being subject to yet another mutant algorithm, it’s very easy to use (suspiciously similar to Twitter’s interface in fact). If you’re passing, I’m on it as @sricketts101.
Simon Ricketts, 15 July 2023
Personal views, et cetera
SIMONICITY 