“It needs to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision making in special cases, not an obstacle-race” (Carnwath LJ as he then was, in R (Jones) v Mansfield District Council (Court of Appeal, 16 October 2003).
The courts continually tell us this, despite so many professionals, politicians and objectors still treating the process of environmental impact assessment as some duller version of Gladiators.
Perhaps if we heeded this message the Government wouldn’t need to tie itself up in knots trying to replace environmental impact assessment and strategic environmental assessment with this still vague idea of environmental outcomes reports (reported by Planning Resource this week as now not likely to progress until 2025!).
I thought about this when looking at this week’s (free subscription) Town Library weekly judgments update – it contains amongst other things two Court of Appeal judgments dealing with particular assessment issues that regularly arise – as to cumulative effects and as to defining the “project“.
First we have R (Substation Action Save East Suffolk v Secretary of State (Court of Appeal, 17 January 2024) which concerned a challenge to development consent orders for the construction of the East Anglia One North and East Anglia Two offshore wind farms with associated onshore and offshore development.
The case has attracted some interest in relation to the court’s determination that the sequential test in relation to flood risk does not apply to the risk of flooding from surface water:
“The relevant provisions of EN-1, the Framework and the PPG do not require an applicant for development consent to demonstrate that whenever there is a risk of flooding from surface water there are no other sites reasonably available where the proposed development could be located in an area of lower surface water flood risk. The risks of flooding from surface water are to be taken into account when deciding whether to grant development consent under section 104 of the 2008 Act. The way in which account is to be taken of that risk raises issues of planning judgment in the application of the relevant provisions of the policies. The judge was correct in her interpretation of the policy and in finding that there was no irrationality or other public law error in the way in which the first respondent dealt with this issue when granting development consent.”
However, it was also interesting to read the the court’s consideration of the extent to which the potential effects on the environment arising from other projects need to be taken into account as cumulative effects. The appellant contended that “certain projects (known as the “Nautilus” and “Eurolink” schemes) have been identified as projects which could connect with the new National Grid substation. An assessment of the effect of those two projects was included in an Extension Appraisal document supplied by the second and third respondents. The appellant contends that the first respondent should have taken that information into account when deciding whether to make the development consent orders but he did not do so.” The reference in Schedule 4 of the EIA Regulations that the environmental statement must describe the likely significant effects of the development, including “the cumulation of effects with other existing and/or approved projects” is regarded as somewhat of a minefield.
The court ducked whether these potential future projects were to be regarded as “existing or approved” because the decision maker lawfully deferred consideration of the cumulative effects on the basis that there was not yet any adequate information on which a cumulative assessment could be based. “Such information as was available on the likely effects of other potential projects was not relevant to the assessment of the significant effects of the projects forming part of the applications for development consent in the present case.”
EIA pragmatism exhibit #1.
Secondly we have R (Together Against Sizewell C) v Secretary of State (Court of Appeal, 20 December 2023) which concerned a challenge to a development consent order for the proposed Sizewell C nuclear power station. The challenge related to Habitats Regulations Assessment rather than environmental impact assessment but the principles read across. It was argued that the Secretary of State was wrong in law to treat the permanent supply of water to Sizewell C as not being part of the same project as Sizewell C for the purposes of carrying out an “appropriate assessment” under the Habitat Regulations (“Ground 1”) and that even if the Secretary of State was right to regard the permanent water supply as a separate project, he erred in failing to carry out a cumulative assessment of its effects together with those of Sizewell C itself, as per the Habitats Regulations (“Ground 2”).
Lazily I’m now just going to quote from our Town Library case summary:
“Ground 1
The Court dismissed Ground 1. The Court accepted, firstly, that there was no material difference between the meaning of a “project” under the Habitat Regulations and environmental impact assessment regulations and, secondly, that the principle adopted in previous cases that determining the nature and scope of a project, including whether two or more developments are to be regarded as one project, is a matter for the decision-maker to determine, which can only be subject to judicial review by the court on the grounds of irrationality or other unlawfulness. The Court, although seeking not to be prescriptive, endorsed the factors identified in the Wingfield case as capable of influencing this exercise of judgment.
The Court found no irrationality or any other unlawfulness in the Respondent’s decision, noting not only that he was entitled to reach this decision, but the Court would have reached the same conclusion.
It should also be noted that the Court rejected an argument that the Respondent unlawfully avoided appropriate assessment under the Habitats Regulations and saw the approach taken as a realistic and legitimate use of the “staged approach” previously approved in case law.
Ground 2
Ground 2 was dismissed by the Court for a number of reasons. These reasons included that it is well established that the consideration of cumulative impacts arising from a subsequent development that is still inchoate may be deferred to a later consent stage. Given that insufficient information was available as to the water supply, the decision to defer assessment by the Respondent was rational and lawful.
The Court rejected the argument that no proper assessment of the impacts would be carried out at the later stage because the construction of Sizewell C would result in the inevitable approval of the water supply proposal. There was no evidential basis for assuming that regulators would fail to carry out their statutory duties to assess the adverse effects of the water supply. The Court also rejected the argument that deferral was irrational because of a risk of Sizewell C not being operational in the absence of a water supply, as there was a reasonable level of certainty a permanent water supply would be provided and further the alternatives would still be subject to appropriate assessment.
To what extent is a decision-maker required to consider, before granting planning permission, whether there are alternative, more acceptable, development proposals compared to that which has been applied for?
The question arises again and again and the answer can be a bit of a blur.
Now that Marks and Spencer’s challenge to the Secretary of State’s decision to refuse planning permission for the demolition and redevelopment of its Oxford Street building has been ruled by Lang J to be arguable and will proceed to a full hearing, we shall see what the court makes of the reliance that the Secretary of State placed upon his conclusion that:
“32. Overall, the Secretary of State concludes that the evidence before him is not sufficient to allow a conclusion as to whether there is or is not a viable and deliverable alternative, as there is not sufficient evidence to judge which is more likely. The Secretary of State also does not consider that there has been an appropriately thorough exploration of alternatives to demolition. He does not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable and nor has the applicant satisfied the Secretary of State that options for retaining the buildings have been fully explored, or that there is compelling justification for demolition and rebuilding.
33. The Secretary of State notes that M&S has stated that it will not continue to occupy and trade from the store for very much longer if permission is refused (IR13.46). Whether or not M&S leave the store following the Secretary of State’s decision is a commercial decision for the company. However, taking into account the locational advantages of the site, the Secretary of State does not agree with the Inspector at IR13.75 that redevelopment is the only realistic option to avoid a vacant and/or underused site.”
“269 The analysis by Simon Brown J (as he then was) in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 293,299–300 has subsequently been endorsed in several authorities. First, land may be developed in any way which is acceptable for planning purposes. The fact that other land exists upon which the development proposed would be yet more acceptable for such purposes would not justify the refusal of planning permission for that proposal. But, secondly, where there are clear planning objections to development upon a particular site then “it may well be relevant and indeed necessary” to consider whether there is a more appropriate site elsewhere. “This is particularly so where the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.” Examples of this second situation may include infrastructure projects of national importance. The judge added that, even in some cases which have these characteristics, it may not be necessary to consider alternatives if the environmental impact is relatively slight and the objections not especially strong.
270 The Court of Appeal approved a similar set of principles in R (Mount Cook Land Ltd) v Westminster City Council [2017] PTSR 1166, at para 30. Thus, in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant. In those “exceptional circumstances” where alternatives might be relevant, vague or inchoate schemes, or which have no real possibility of coming about, are either irrelevant or, where relevant, should be given little or no weight.”
“Ground 1: The Secretary of State unlawfully failed to comply with the requirement in Regulation 21(1)(b) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 to provide a reasoned conclusion on the significant effects of the Scheme because he erroneously treated National Highways’ Environmental Statement as providing a cumulative assessment of the carbon emissions from the Scheme in conjunction with other developments when it did not and he failed to assess the significance of those cumulative impacts.
Ground 2: when concluding that the benefits of the Scheme clearly outweighed the harm to the Green Belt such that there were ‘Very Special Circumstances’ justifying inappropriate development in the Green Belt, the Secretary of State unlawfully failed personally to assess whether credible alternatives proposed might deliver substantially similar benefits with less harm to the Green Belt.”
Both grounds of challenge were rejected but I am going to focus on the second.
“Twenty-two hectares of the Scheme will be located on Green Belt land. The Panel reached the view that the Scheme will cause harm to the openness of the Green Belt. It will cross the Green Belt, introduce permanent embankments, bunds, and barriers alien to the Green Belt; give prominence to vehicles and introduce new street lighting. The Panel gave the harm significant weight in its decision making but concluded that the need for, and considerable public benefits of, the Scheme clearly outweighed the adverse effects of the Scheme, including its harm to the Green Belt. The public benefits weighing significantly in favour of granting consent were said to include the reduced congestion and improved journey time through Mottram, Hollingworth and Tintwistle, as well as between Manchester and Sheffield, together with the significant economic benefits brought about by the improvements proposed. The Secretary of State agreed with the Panel’s conclusion.”
CPRE argued that “in the circumstances of this case, the existence or absence of alternatives that might deliver the same or similar benefits, with no or substantially less harm to the Green Belt, was a mandatory material consideration which the Secretary of State unlawfully failed to take into account. The following reasons were advanced for this assessment. First, the Scheme will involve large scale civil engineering works that will be permanent and irreversible. Second, the Scheme was considered to be inappropriate development and the harm caused to the openness of the Green Belt by the Scheme was given “substantial weight” by the Secretary of State. Third, National Highways had expressly relied on its options appraisal, and “the lack of alternatives” to demonstrate very special circumstances justifying inappropriate development. Fourth, interested parties had specifically identified credible alternatives in the course of the Examination that they claimed would deliver the same or similar benefits with no or substantially less harm to the Green Belt. Fifth, the alternatives proposed were concrete and capable of genuine assessment. They had scored well in early options appraisals, and their promoters were present and engaged in the Examination. Those credible alternatives had received considerable attention in the Examination. Sixth, this was not an “alternative sites” case. Rather, as in Langley Park School for Girls v Bromley London Borough Council ([2010] 1 P & CR 10) and R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport ([2021] EWHC 2161 (Admin)) it was an “alternative schemes” case where the alternative schemes advanced by interested parties fell within the red line boundary of the application site. Seventh, the initial options appraisal was more than seven years old and did not reflect substantial changes in policy and technology since then and had not assessed alternatives with regard to their impacts on Green Belt purposes and openness, as in Langley Park.“
The judge referred to Holgate J’s summary of the case law.
“The category of legal error relied on in the present case is said to be that the Secretary of State erred by failing to take account of the alternatives advanced by CPRE and Mr Bagshaw. An error of law cannot arise in this regard unless, on the facts, the alternatives advanced by CPRE and Mr Bagshaw were so obviously material, that it was irrational for the Secretary of State to fail to consider them.”
The judge rejected the arguments as follows:
“In conclusion; I do not accept the underlying factual basis of CPRE’s primary case that the Secretary of State treated alternatives as a material consideration but failed to assess them for himself. Permission to apply for judicial review on CPRE’s primary case is refused.
Nor am I persuaded that the alternatives advanced by CPRE and Mr Bagshaw were mandatory material considerations such that it was unlawful for the Secretary of State to rely on their assessment by National Highways in its options appraisal of the Scheme. The present case is not analogous with the wholly exceptional set of circumstances in R (Save Stonehenge World Heritage Site) v Secretary of State for Transport [2021] EWHC 2161 (Admin). There is no general principle of law that the existence of alternative sites inevitably becomes a mandatory material consideration in any case where a proposed development would cause adverse effects but these are held to be outweighed by its beneficial effects (Lang J in R (Substation Action Save East Suffolk Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] PTSR 74 at §211). Neither the applicant for development consent or the decision maker relied on the absence of alternatives to justify the Scheme. The credibility of the alternatives advanced was in dispute. The present case is distinguishable from Langley Park School for Girls v Bromley London Borough Council [2010] 1P & CR 10). The criticism advanced about the age of the options appraisal by National Highways was addressed by the Panel in its Report.
The Panel approached the alternatives proposed as a matter of planning judgement, giving them brief consideration but focussing its consideration on whether a proportionate options appraisal had been carried out by the applicant for development consent, in accordance with paragraph 4.27 of the Policy Statement on National Networks. The Secretary of State agreed with the Panel’s approach and conclusion. In my judgment the approach taken demonstrates no error of law.”
I have emboldened above the passages which are of most interest.
It is also worth remembering that environmental impact assessment does not require consideration of alternatives, simply a description of the “reasonable alternatives” which have in fact been “studied by the developer”.
In summary, whilst there are exceptions, decision making in relation to planning applications and appeals is not generally about casting around for better alternatives to the proposal under consideration, but about assessing its adequacy, judged against the development plan and other material considerations.
I hope you didn’t notice that there was no blog post last weekend. I really needed the clocks to go back again to give me enough time. Picking up the tablet and chisel a fortnight later is not easy.
So much to say!
Another planning minister bit the dust. I liked Iain Thomson’s quip on LinkedIn about 15 minute planning ministers – far more of a scourge than 15 minute cities.
As part of its ongoing market study into housebuilding the Competition and Markets Authority has published on 15 November 2023 two further working papers, on landbanks and planning rules. To quote from the press release:
“On land banks, the CMA’s analysis has found that, although land equivalent to over a million plots is held in landbanks, in most local areas that land is held by several different builders. The CMA is seeking feedback on this analysis, and in particular, whether local competition is being negatively impacted in the small number of areas where large amounts of developable land are controlled by a small number of housebuilders.
The CMA is continuing to examine the size of land banks overall, recognising that housebuilders need to hold a pipeline of land as sites pass through the planning system. The conclusions of this analysis will be published in the final report.”
“On planning, the CMA has developed options that the UK, Scottish and Welsh governments may consider when reforming their planning systems, including:
Whether a zoning or rules-based approach to development may help improve competition between housebuilders and boost housing delivery.
Making better use of councils’ limited time and resources by requiring them to only consult statutory stakeholders, rather than a wider group, as part of their assessment of planning applications. Late consultee responses on development could also be ignored.
Having an effective housing target which reflects the housing need of specific areas, and improving the ways governments ensure all councils have a proper local plan in place.”
Yep, another set of helpful suggestions as to planning reform.
But I wanted to step back from the politics and just shine a torch on two useful recent planning law cases. And to save myself from too much chiselling, all I am going to do is to point you to the following case summaries put out by those involved:
In the context of a challenge by local residents to an inspector’s decision to allow an appeal for a solar farm and battery storage scheme in Hampshire, the judgment covers a number of practical issues such as:
Where an environmental statement is to be updated at the appeal stage, can the appellant carry out the publicity and consultation process? Yes.
Can a party choose not to call a witness, despite having submitted that witness’ proof of evidence to the inquiry? Yes.
Does the Government’s Planning Practice Guidance on renewable and low carbon energy impose a requirement to consider alternatives where solar farms use best and most versatile agricultural land? No. Consideration of alternative sites will only be relevant to a planning application in “exceptional circumstances”.
Secondly, a summary by Landmark Chambers of NRS Saredon Aggregates Limited v Secretary of State and Worcestershire County Council (Eyre J, 16 November 2023), a case in which Landmark’s Jenny Wigley KC appeared for the successful claimant. Eyre J quashed an inspector’s decision refusing planning permission for a sand and gravel quarry in the green belt, on the basis that the inspector made a legal error in relation to the weight to be applied to the biodiversity net gain (BNG) that would arise from the project. To quote from the summary:
“It was agreed at the inquiry that the scheme would deliver over 39% BNG. The Inspector afforded ‘only moderate weight’ to this on the basis that “some of the biodiversity net gain that would be achieved is required to meet national policy and future legislative requirements in order to mitigate the environmental impact of the development”.
The High Court agreed with the Claimant that the Inspector’s judgement as to weight was affected by a mistaken view as to requirements of forthcoming legislation. Because there was no basis for considering that the legislation might be retrospective, it was plainly not applicable to the scheme to be determined:
“The effect of that interpretation is that when assessing the weight to be attributed to the biodiversity net gain for the purposes of assessing whether there were very special circumstances outweighing the harm to the openness of the Green Belt the Inspector reduced the weight on the basis of a mistaken view as to the law. He did so believing incorrectly that some of the net gain would be required in any event by reason of the forthcoming legislation. That was an error of law and meant that the Inspector exercised his planning judgement as to the weight to be given to that material consideration (namely the net gain) on a basis that was wrong in law.”
The case is a useful way of reminding decision makers that there is, as yet, no legal requirement for 10% biodiversity net gain. The relevant provisions in the Environment Act 2021 have yet to come into force and, when they do (in January, we’re now told), the requirement will only apply to new applications submitted on or after that date. There is a policy requirement in the NPPF for biodiversity net gain, but only that such gain should be positive, i.e above zero, and there are also varying policy requirements in some Local Plans, but still no legal requirement. In emphasising benefits of development proposals, it is useful to stress the degree of BNG being offered and, for all applications already in the system, it is worth pointing out that any degree of BNG goes above and beyond legal requirements and should be afforded due weight accordingly.”
Two reminders that the courts are often more useful than politicians in clarifying how important practical aspects of the planning system should work.
Another fact to note: in the NRS Saredon case, all four counsel were female. In the Bramley case, three of the five counsel were female, as well as of course the judge.
As always, these cases, together with any others handed down last week by the Planning Court or on appeal from the Planning Court, will feature in our Town Library Planning Court Judgments weekly update and you can subscribe for free at the link.
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.
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.”
“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:
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.
I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.
This is going to be a fundamental change to our plan-making and decision-making process.
We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.
By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.
The “non-regression” duty set out in clause 142(1) is an important protection:
“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”
The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:
• inefficiency
• duplication
• risk aversion
• loss of focus
• issues with data
Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:
“It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.
(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).
I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:
“EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.
– The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.
– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.
– On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).
– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.
– The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.
– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).
– There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.
– There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”
The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:
• a short introduction (which references the project details in the accompanying Planning Statement)
• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project
• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include
• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed
• the current baseline and relevant trend data, similarly identified
• commentary on levels of uncertainty for that data or indicator set
• proposed mitigation, and
• monitoring proposals
• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.
Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:
• biodiversity
• air quality
• landscape and seascape
• geodiversity, soil and sediment
• noise and vibration
• water
• waste
• cultural heritage and archaeology
The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.
The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.
Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.
You may be returning from that escapist world that is MIPIM and grimacing at the prospect of a week’s worth of emails, or you may be finishing a week of grimacing at all the LinkedIn pics of your colleagues in Ray-Bans. In any event, we now have three developments in relation to the Levelling-up and Regeneration Bill, currently at Committee stage in the House of Lords, sent to test the old saying that a change is a good as a rest…
I’m very grateful for three of my partners, not part of the MIPIM contingent, who have particularly had their eyes on the following:
Government amendment relating to removal of “hope” value in relation to particular categories of CPO
The Government tabled amendments on 13 March 2023 to the Levelling-up and Regeneration Bill that would have significant impacts on landowners. Raj Gupta has written a Compulsory Reading blog post LURB in the Lords – no hope (16 March 2023) on the potentially far-reaching implications. We have arranged a Clubhouse Planning Law Unplanned session at 5 pm on Thursday 23 March to discuss the proposal, led by Raj, Jon Stott, Greg Dickson and other leading specialists. Please RSVP here if you would like to tune in and/or take part in the discussion.
Government consultation on environmental outcomes reports – a new approach to environmental assessment
The Government published its consultation today, 17 March 2023, on the design on its proposed new system of environmental assessment. See the press statement, and consultation document. Duncan Field has set out some initial comments in a LinkedIn post. Again, we are going to arrange a Clubhouse Planning Law Unplanned event, probably for Thursday 30 March but further details will appear shortly.
Government consultation on the proposed infrastructure levy
The Government published its consultation today, 17 March 2023, on the design of the proposed infrastructure levy. See the press statement, technical consultation and a February 2023 research paper published alongside it. Clare Fielding will shortly be publishing a Levy-Headed blog post as to the likely implications.
Now to unpack. And let my picture be a warning for you to keep your parents away from the Be Real app.
Defining what is the “project” for the purposes of ascertaining whether environmental impact assessment is required and, if it is, carrying it out appropriately, can be more difficult than one might think.
An application should not be considered in isolation if, in reality, it is an integral part of a more substantial development (Judgment in the case of R v Swale BC ex parte RSPB [1991] 1PLR 6). In such cases, the need for Environmental Impact Assessment must be considered in the context of the whole development. In other cases, it is appropriate to establish whether each of the proposed developments could proceed independently (R (Candlish) v Hastings Borough Council [2005] All ER (D) 178 (Jul); Baker v Bath & North East Somerset Council [2009] All ER (D) 169 (Jul)).
Paragraph: 025 Reference ID: 4-025-20170728“
I’m going to consider in this blog post the Court of Appeal’s ruling last week in R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023), but the caselaw references in the guidance have been out of date for some time, in not referring to a number of recent cases, for instance the Court of Appeal’s ruling in R (Larkfleet Limited) v South Kesteven District Council (Court of Appeal, 6 August 2015), which concerned a proposal for a bypass on which significant residential development was dependent.
The court in Larkfleet referred to the relevant EU legislation and case law, in accordance with which the EIA Regulations were to be interpreted:
“What is in substance and reality a single project cannot be “salami-sliced” into a series of smaller projects, each of which falls below the relevant threshold criteria according to which EIA scrutiny is required”.
In that case, the court found that the construction of the bypass and the carrying out of the residential development were indeed to be treated as separate “projects”:
“Mr Kingston QC, for the Appellant, sought to rely on these passages in support of his submission that SKDC was obliged to assess the proposal for the link road and the proposal for the residential site as a single project. However, in my view the argument is unsustainable. It is clear from the terms of the EIA Directive that just because two sets of proposed works may have a cumulative effect on the environment, this does not make them a single “project” for the purposes of the Directive: the Directive contemplates that they might constitute two potential “projects” but with cumulative effects which need to be assessed. The passages from Ecologistas to which I have referred also contemplate that two sets of proposed works may constitute different projects for the purposes of the Directive. What these passages are directed towards is avoiding a situation in which no EIA scrutiny is undertaken at all. However, if the two proposed sets of words are properly to be assessed as two distinct “projects” which meet the threshold criteria in the Directive, there will be EIA scrutiny of the cumulative effects of the two projects.
It is true that the scrutiny of cumulative effects between two projects may involve less information than if the two sets of works are treated together as one project, and a planning authority should be astute to ensure that a developer has not sliced up what is in reality one project in order to try to make it easier to obtain planning permission for the first part of the project and thereby gain a foot in the door in relation to the remainder. But the EIA Directive and the jurisprudence of the Court of Justice recognise that it is legitimate for different development proposals to be brought forward at different times, even though they may have a degree of interaction, if they are different “projects”, and in my view that is what has happened here as regards the application for permission to build the link road and the later application to develop the residential site.
The EIA Directive is intended to operate in a way which ensures that there is appropriate EIA scrutiny to protect the environment whilst avoiding undue delay in the operation of the planning control system which would be likely to follow if one were to say that all the environmental effects of every related set of works should be definitively examined before any of those sets of works could be allowed to proceed (and the disproportionate interference with the rights of landowners and developers and the public interest in allowing development to take place in appropriate cases which that would involve). Where two or more proposed linked sets of works are in contemplation, which are properly to be regarded as distinct “projects”, the objective of environmental protection is sufficiently secured under the scheme of the Directive by consideration of their cumulative effects, so far as that is reasonably possible, in the EIA scrutiny applicable when permission for the first project (here, the link road) is sought, combined with the requirement for subsequent EIA scrutiny under the Directive for the second and each subsequent project. The adequacy and appropriateness of environmental protection by these means under the EIA Directive are further underwritten by the fact that alternatives will have been assessed at the strategic level through scrutiny of relevant development plans (here, the Core Strategy and Masterplan) from an environmental perspective under the SEA Directive.”
“The most important feature of this case is that there is a strong planning imperative for the construction of the link road as part of the Grantham by-pass which has nothing to do with the development of the residential site. It is clear from the evidence that the residential site could not be granted planning permission unless the link road is constructed, but the converse is not true: there is a strong independent planning need for the construction of the link road (to complete the Grantham by-pass) whether or not the residential site is developed. In the context of this planning rationale, it makes obvious sense to regard the main function of the link road as being to form part of the Grantham by-pass and hence to regard the relevant project as the “construction of a road” (in the terminology in section 10 of Annex II to the EIA Directive). Since the main functional purpose of the link road, as part of the Grantham by-pass, is to provide a new passage for traffic to avoid Grantham this approach to identification of the project is supported by the references to roads and other transportation projects such as railways, tramways and so on in Annex I and Annex II to the EIA Directive as set out above.”
“As to the design connections, given that it is part of SKDC’s local plan that the residential site should be developed for housing (with some community and employment uses as well), it is simple planning good sense that an application should have been made for the link road (as part of the Grantham by-pass) to skirt the site, to avoid jeopardising those discrete planning objectives, and for the link road to include the roundabout and the stub, to avoid extra costs which are foreseeable if the residential site is developed in accordance with the local plan documents.”
“The fact that funding for the construction of the link road will depend to a significant degree on contributions in due course from the developer of the residential site does not lead to the conclusion that they must be regarded as part of a single “project”. The funding arrangements are contingent matters which do not bear on the planning merits of the proposal to construct the link road to complete the Grantham by-pass.”
“As regards the references in the local plan documents and other documentation to the connections between the link road and the residential site proposals, in my view they are just reflections of the points of linkage between the link road and the residential site referred to above. For example, it is unsurprising that in seeking planning permission for the link road LCC should have emphasised not just the desirability of constructing the Grantham by-pass but also how well that project fitted with other aspects of SKDC’s local plan and the other benefits for SKDC’s area which it would bring; and it is unsurprising that in seeking central government funding for the Grantham by-pass LCC should have emphasised both the need for the by-pass to ease traffic congestion in Grantham and also the other wider benefits which would be likely to be associated with its construction.”
“As further support for the identification of the link road as a distinct “project”, I think it is relevant that the applicant for planning permission is LCC, which is the highway authority with responsibility to promote the public interest in relation to the road network. LCC is not a private developer and has no commercial interest in the residential site. This tends to indicate that the two projects are distinct. I also think it is relevant that at the time of the link road application the detail of the proposals for the development of the residential site had not been worked up to the point at which an application for planning permission could be made by Buckminster, and it cannot be said that this was any part of some deliberate plan to “salami-slice” the applications so as to subvert the proper operation of planning controls.”
I set out all of the above from Larkfleet in some detail as context for, and in part a counter to, those who try to read to much into the implications of, the Court of Appeal’s ruling this week in R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023).
The case is possibly an unwelcome and no doubt not unusual example of the perverse incentives on local authorities arising from time-limited government funding.
The case concerned a challenge to the grant of planning permission by the council for a road bridge over the Bristol to Birmingham mainline railway north of Ashchurch, Tewkesbury.In March 2019, Tewkesbury has been “awarded Garden Town status for a potential development of up to 10,195 new homes, around 100 ha of employment land, and related infrastructure. This was based on the Tewkesbury Area Draft Concept Masterplan Report (“the Masterplan”), which sets out potential largescale development over an area described as the “North Ashchurch Development Area””.
“The Masterplan expressly recognises that delivery of the northern development plots for Phase 1 development relies on “the provision of a northern link over the main rail line, overcoming severance and completing the link between existing local roads”. It identifies the bridge as one of the “short-term enabling interventions”. The bridge is therefore an essential prerequisite to the delivery of any housing development in the Phase 1 area. It is common ground that the sole purpose of its construction is to facilitate such development.”
“In the normal course of events, one might have expected any application for planning permission to be made only after [progress with the joint core strategy] and the adoption of a local plan, and for TBC to seek permission for the Phase 1 development of which the bridge would form an integral part, including the link road and any other vital transport infrastructure. Instead, the application was made, and granted, for the bridge alone.
[Paul Brown KC, acting for the claimant] told the Court that the bridge is known locally as “the bridge to nowhere,” because after it has been constructed, the temporary haul roads will be removed and there will be no connecting roads on either side, just a bridge in the middle of a field, which will be fenced off. Without a functioning highway unlocking the land within the Phase 1 area on the eastern side of the railway, the bridge will serve no useful purpose.
This unusual state of affairs has arisen because TBC wished to avail itself of funding from the Government which was only available for a limited period. In July 2017, the Government launched a £2.3 billion Housing Infrastructure Fund (“HIF”) in order to support housing delivery through the funding of vital physical infrastructure, such as roads and bridges, with the opportunity to facilitate the development of some 100,000 homes in England. The fund was split into two key areas, namely, forward funding (for larger schemes up to £250 million) and marginal funding (for schemes up to £10 million). The deadline for applications was September 2017.”
“It follows, therefore, that at the time when the application for planning permission for the bridge was considered, there was a clear expectation that the bridge would serve at least 826 houses, to be built within the Phase 1 area on the eastern side of the railway track, and the road infrastructure, including the link road over the bridge, would need to cater for at least that number.
Prior to making the application for planning permission, TBC commissioned an Environmental Impact Assessment Screening Report, for the purpose of determining whether an Environmental Impact Assessment (“EIA”) was required. The Screening Report was produced in May 2020. The Judge quotes relevant extracts at paras 17 to 26 and para 33 of his judgment. The Screening Report noted that the bridge would not be used until future development came forward to make it operational. It recorded that the current proposals identified that the development area was anticipated to provide 826 new houses. Nevertheless it treated the bridge as a stand-alone “project”, to be considered independently from any environmental assessment of the highway and residential elements of the development that it was envisaged the bridge would facilitate. It noted that an assessment of those elements would be carried out in future, as and when it was envisaged that any development under Phase 1 of the Masterplan would be implemented.
The Screening Report recognised that the bridge was Schedule 2 development under the EIA Regulations, but concluded that, looked at in isolation, it was not likely to have significant effects on the environment. It was therefore unnecessary to carry out an EIA.”
There were basically two grounds of challenge to the grant of planning permission, both successful.
I’m not going to consider in detail the first ground (grounds 1 and 2 in the judgment), which was that the officer’s report had advised members to take into account the benefits of the bridge in terms of facilitating the housing development, but not any adverse effects arising from the housing development. Andrews LJ:
“In this particular case, I am satisfied on an appropriately benevolent reading of the [officer’s report] as a whole that the Planning Officer in substance directed the members of the Planning Committee that they could not or must not take account of the harms of the proposed development that the bridge would facilitate. That went beyond mere advice or the expression of a personal view about relevance. Those harms were at least potentially relevant: materiality was a matter for the Committee to determine, and they were being told that they must not consider something to be material which they might otherwise have regarded as material.”
The second ground (ground 3 in the judgment) was that the local planning authority had incorrectly characterised the “project” for EIA purposes as being simply the bridge. You will see the approach that the court took in relation to that matter from the following passages, which I suspect will be widely cited:
“The identity of the “project” for these purposes is not necessarily circumscribed by the ambit of the specific application for planning permission which is under consideration. The objectives of the Directive and the Regulations cannot be circumvented (deliberately or otherwise) by dividing what is in reality a single project into separate parts and treating each of them as a “project” – a process referred to in shorthand as “salami-slicing””.
“In Larkfleet, it was held that a proposed urban extension development and a link road were not a single project because despite the connections between them, there was a “strong planning imperative” for the construction of the link road as part of a town by-pass, which had nothing to do with the proposed development of the residential site. By contrast, in Burridge v Breckland District Council [2013] EWCA Civ 228, (“Burridge”) the Court of Appeal held that a planning application for a biomass renewable energy plant and a planning application for a combined heat and power plant linked to it by an underground gas pipe were a “single project,” on the basis that they were “functionally interdependent and [could] only be regarded as an “integral part” of the same development.”
It follows that the identification of the “project” is based on a fact-specific inquiry. That means other cases, decided on different facts, are only relevant to the limited extent that they indicate the type of factors which might assist in determining whether or not the proposed development is an integral part of a wider project.
Lang J, in her judgment in R(Wingfield) v Canterbury City Council and another [2019] EWHC 1975 (Admin), [2020] JPL 154, (“Wingfield”) stated at [63] that the question as to what constitutes the “project” is a matter of judgment for the competent planning authority, subject to challenge on grounds of Wednesbury rationality or other public law error. At [64] she set out a non-exhaustive list of potentially relevant criteria, which serves as a useful aide-memoire. These include whether the sites are owned or promoted by the same person, functional interdependence, and stand-alone projects. In relation to the last of these factors she said:
“where a development is justified on its own merits and would be pursued independently of another development, this may indicate that it constitutes a single individual project that is not an integral part of a more substantial scheme”.
The reverse may also be true, and that reflects the position in this case.”
“There is no reference in the Screening Report to Larkfleet or Burridge, nor to the factors identified in Wingfield. The author did not address the question whether the bridge and the highway that was envisaged to run across it were “functionally interdependent”; nor the question whether building a non-functioning bridge in the middle of a field was justified on its own merits, as a stand-alone project, without regard to the development it facilitated; nor the question whether the application for permission would have been pursued in the absence of the proposed development of Phase 1 of the Masterplan.”
“I reject the proposition that in a case in which the specific development for which permission has been sought clearly forms an integral part of an envisaged wider future development, without which the original development would never take place, there can only be a single “project” for the purposes of the Directive and the Regulations if the contemplated wider development has reached the stage where an application has been made or could be made for planning permission. That proposition appears to me to be antithetic to the approach taken in Rochdale and inherently illogical. The question “is this application part of a larger project?” can still be answered even if planning permission has not yet been sought for the larger project or the details of the larger project have not been finalised.”
“Insofar as the author of the Screening Opinion, and the Development Manager, decided that the “project” must be confined to the bridge because “any future contemplated development could not be [robustly] assessed at the time of the screening decision”, they fell into error by conflating two separate inquiries, namely, “what is the project?” and “what are the environmental impacts of that project?” The difficulty of carrying out any assessment of the impacts of a larger project which is lacking in detail, is a matter which is separate from and irrelevant to the question whether the application under consideration forms an integral part of that larger project.”
“The Phase 1 project may not be easy to define in detail because it is at a relatively early stage, which explains why the Screening Report refers to a “lack of definition”. That may affect the way in which the overall assessment of whether there is a significant impact on the environment is carried out – it would necessarily be based on less concrete information than an assessment at a later stage of the planning process would be. However, in my judgment it cannot affect the answer to the initial question at the screening stage, “is this application part of a larger project”? If and to the extent that TBC treated it as if it did, they fell into error.
The fact that the Planning Practice Guidance addresses the potential relevance of “other existing or approved developments” and tells local planning authorities that they should always have regard to the possible cumulative effects arising from any existing or approved development, should not be taken as restricting consideration of the impact of larger projects to “existing or approved” developments.
I accept that there was no evidence of any deliberate attempt by TBC to “salami-slice” in the present case. There were cogent justifications provided for hiving off and accelerating the application for the bridge, which had nothing to do with a wish to avoid the impacts of a full EIA assessment. But it does not follow from the fact that the application for the bridge was hived off in that way that its relationship to Phase 1 of the Masterplan, which provided the sole underlying justification for its existence, could be lawfully ignored when deciding on the identity of the “project””
“In conclusion on Ground 3, I am satisfied that TBC did not take a legally correct approach to the decision whether an EIA assessment was required. They never asked themselves the right questions. If and insofar as they justified treating the bridge as a stand-alone “project” by reference to (a) the difficulty of assessing the environmental impacts of the wider project (b) the fact that the Masterplan has no formal planning status or (c) the fact that EIA assessments will be carried out in future as and when Phase 1, or other aspects of it, become the subject of planning applications, they fell into error.”
What are the main implications of the Ashchurch case?
Care is needed in relation to the EIA scoping and screening process for a start, analysing the particular factual situation against this case law.
Clarity is needed as to whether there is any functional interdependence on other proposals – whether the proposals the subject of the planning application would be likely to proceed absent wider proposals – whether it forms an integral part of a larger project (to my mind that remains, as per Larkfleet, a high test, but it needs to be properly considered by the decision maker)
Caution should be exercised – in particular that those matters set out in the final passage I quote above are not relied upon as justification for arriving at a narrow project definition.
As always, this is not an “opening of the floodgates” moment. This was about a piece of infrastructure which only had one potential purpose. It was not, for instance, one parcel of development within a wider development allocation as in Wingfield. What matters is that decision makers should arrive at a reasoned, rational, conclusion as to the extent of the project for the purposes of the EIA Regulations, rather than simply take what is given to them on a plate by way of the planning application.
“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.
Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers.
What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:
“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”
Always just another month or so to wait, every time.
First, a reminder about the Town Library weekly Planning Court updates. You can still register for free to receive a weekly summary of all judgments handed down from the Planning Court (and on appeal from the Planning Court) (those following a final hearing that is – wouldn’t it be great to have permission-stage orders as well…?). There is an on-line index that goes back 4 years and our internal index goes back to the creation of the court in 2014.
“The Court of Appeal has upheld the judgment of the High Court on the question of whether it was unlawful for Surrey County Council not to require the environmental impact assessment (“EIA”) for a commercial crude oil extraction project to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel.
The High Court had found that, while it was common ground that an environmental statement should assess both the direct and indirect effects of the development for which planning permission was sought that are likely to be significant, “indirect effects” must still be effects which the development itself has on the environment. It noted that the EIA process was concerned with the use of land for development and the effects of that use; it was not directed at the environmental effects which resulted from the use of an end product.
The Court of Appeal agreed that the Council had not acted unlawfully but while the High Court considered that in the circumstances of this case, the assessment of greenhouse gas emissions from the future combustion of refined oil products at the development site was, as a matter of law, incapable of falling within the scope of the EIA for the planning application, the Court of Appeal held that the existence and nature of “indirect” effects would always depend on the particular circumstances of the development under consideration and that establishing what should be included in an environmental statement was for the relevant planning authority. The need for a wider assessment of greenhouse gas emissions may sometimes be appropriate; what needs to be considered is the degree of connection between the development and its putative effects.
In this case, though the project itself was confined to the construction and use of a well site for the commercial extraction of crude oil for onward transport to refineries, the eventual combustion of the refined products of the oil extracted at the site was “inevitable”, not merely “likely” or “possible”. This being so, the Court of Appeal decided that it was for the Council to establish whether, bearing in mind the intermediate stages which would have to occur before combustion could take place, the greenhouse gas emissions which would be generated in that way were properly to be regarded as “indirect” effects of the proposed development. It was not the court’s role in a claim for judicial review to substitute its own view for the planning authority’s on a question of this kind.”
Given that I am not responsible for the summaries, I think I can say that it really is an amazing resource to receive week by week.
Secondly, a reminder about our clubhouse Planning Law Unplanned event happening from 6 to 7.15 pm this Tuesday, 1 March 2022. Did you hear Hashi Mohamed’s radio 4 documentary, Planning, Housing and Politics on 21 February 2022? We thought it would be great to unpack some of the themes, and perhaps some things which weren’t covered, in a longer session. Hashi and some of those who spoke on the programme will be joining us. Do come along to listen or make your views known. Link to app and event here (and there are recordings of many of our recent events available to listen to on the app).
The court has quashed the decision of the Secretary of State (“SST”), against his examining authority’s recommendations, to “grant a development consent order (“DCO”) […] for the construction of a new route 13 km long for the A303 between Amesbury and Berwick Down which would replace the existing surface route. The new road would have a dual instead of a single carriageway and would run in a tunnel 3.3 km long through the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site (“WHS”)“. I had written about the SST’s decision to grant the DCO in my 14 November 2020 blog post, Minister Knows Best (It is interesting to look back – all three of the DCO decisions I mentioned in that post have now been quashed, the others being Norfolk Vanguard Windfarm (also by Holgate J, in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy (18 February 2021) and also in February 2021 the quashing by consent order of the Manston Airport DCO).
The SST’s decision to grant the A303 (Amesbury to Berwick Down) Development Consent Order 2020, to give it its formal title, was challenged on five grounds, some of those with sub-grounds. They were, in full:
Ground 1
(i) The SST failed to apply paragraph 5.124 of the NPSNN (see [43] above) to 11 non-designated heritage assets;
(ii) The SST failed to consider the effect of the proposal on 14 scheduled ancient monuments (i.e. designated heritage assets);
(iii) The SST failed to consider the effect of the proposal on the setting of the heritage assets, as opposed to its effect on the OUV of the WHS as a whole;
(iv) The SST’s judgment that the proposal would cause less than substantial harm improperly involved the application of a “blanket discount” to the harm caused to individual heritage assets.
Ground 2– lack of evidence to support disagreement with the Panel
“The claimant submits that the SST disagreed with the Panel on the substantial harm issue without there being any proper evidential basis for doing so. Mr. Wolfe QC advances this ground by reference to the SST’s acceptance of the views of IP2 in DL 34, 43, 50 and 80. He submitted that IP2’s representations did not provide the SST with evidence to support his disagreement with the Panel on “substantial harm” in two respects. First, he said that HE only addressed the spatial aspect of the third main issue and did not address harm to individual assets or groups of assets. Second, he submitted that SST had misunderstood IP2’s position: it had never said that the harm would be less than substantial.”
Ground 3 – double-counting of heritage benefits
“The claimant submits that the SST not only took into account the heritage benefits of the scheme as part of the overall balancing exercise required by para. 5.134 of the NPSNN, but also took those matters into account as tempering the level of heritage disbenefit. It is said that this was impermissible double-counting because those heritage benefits were placed in both scales of the same balance.”
Ground 4 – whether the proposal breached the World Heritage Convention
“The claimant contends that the SST’s acceptance that the scheme would cause harm, that is less than substantial harm, to the WHS involved a breach of articles 4 and 5 of the Convention and therefore the SST erred in law in concluding that s.104(4) of PA 2008 was not engaged. It was engaged and so, it is submitted, the presumption in s.104(3) should not have been applied in the decision letter.”
Ground 5
(i) The SST failed to take into account any conflict with Core Policies 58 and 59 of the Wiltshire Plan and with policy 1d of the WHS Management Plan;
(ii) The SST failed to take into account the effect of his conclusion that the proposal would cause less than substantial harm to heritage assets on the business case advanced for the scheme;
(iii) The SST failed to consider alternative schemes in accordance with the World Heritage Convention and common law.
The 39 Essex chambers press statement (this being a case well represented by barristers from that chambers: five of the seven appearing!) summarises the outcome as follows:
“The claim was allowed on two grounds:
· Part of ground 1(iv): that the Minister did not receive a precis of, or any briefing on, heritage impacts where the Examining Authority agreed with Highways England but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement;
· Ground 5(iii): The Examining Authority and the Minister limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives, in particular extending the proposed tunnel farther westwards. Mr Justice Holgate considered it was irrational not to have drawn conclusions in relation alternatives, particularly given that third parties had raised them and the Examining Authority had addressed the information about them in its Report. The Judge held that the circumstances were wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Minister was required to assess and draw conclusions upon.
The Court rejected other grounds of challenge holding:
· There was no failure to consider whether certain archaeological sites were of national importance;
· The effects on certain individual scheduled monuments had been considered;
· The examining authority and the Minister had considered the effect on scheduled monuments and other heritage assets in addition to the World Heritage Site;
· The Minister had correctly understood Historic England’s advice;
· Discussing the recent Court of Appeal judgment in Bramshill the judge considered that in some cases a decision maker could consider the harm and benefits to a particular heritage asset before deciding whether there was net harm to it and that harm could be assessed for different purposes in different parts of guidance. In Stonehenge the court held that there had been no improper double counting or consideration;
· Articles 4 and 5 of the World Heritage Convention confers obligations on member states towards World Heritage Sites. The Court considered that the Convention does not impose an absolute requirement of protection, but that a balance can be drawn against harm and public benefits.
· The Minister had also lawfully considered the development plan, the World Heritage Site Management Plan and the business case.”
For those who may misunderstand the supervisory role of the courts, there was this warning from Holgate J:
“Plainly, this is a scheme about which strongly divergent opinions are held. It is therefore necessary to refer to what was said by the Divisional Court in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553 at [6]:- “It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The Court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”
The present judgment can only decide whether the decision to grant the DCO was lawful or unlawful. It would therefore be wrong for the outcome of this judgment to be treated as either approving or disapproving the project. That is not the court’s function.”
I thought it might be interesting to pick out some of the passages where Holgate J sets out his reasoning for finding the decision to have been unlawful:
Ground 1(iv)
“Here, the SST did receive a precis of the ES [environmental statement] and HIA [heritage impact assessment] in so far as the Panel addressed those documents in its report. But the SST did not receive a precis of, or any briefing on, the parts of those documents relating to impacts on heritage assets which the Panel accepted but did not summarise in its reports. This gap is not filled by relying upon the views of IP2 in the Examination because, understandably, they did not see it as being necessary for them to provide a precis of the work on heritage impacts in the ES and in the HIA. Mr Wolfe QC is therefore right to say that the SST did not take into account the appraisal in the ES and HIA of those additional assets, and therefore did not form any conclusion upon the impacts upon their significance, whether in agreement or disagreement.
In my judgment this involved a material error of law. The precise number of assets involved has not been given, but it is undoubtedly large. Mr Wolfe QC pointed to some significant matters. To take one example, IP1 assessed some of the impacts on assets and asset groupings not mentioned by the Panel as slight adverse and others as neutral or beneficial. We have no evidence as to what officials thought about those assessments. More pertinently, the decision letter drafted by officials (which was not materially different from the final document – see [67] above) was completely silent about those assessments. The draft decision letter did not say that they had been considered and were accepted, or otherwise. The court was not shown anything in the decision letter, or the briefing, which could be said to summarise such matters. In these circumstances, the SST was not given legally sufficient material to be able lawfully to carry out the “heritage” balancing exercise required by paragraph 5.134 of the NPSNN and the overall balancing exercise required by s.104 of the PA 2008. In those balancing exercises the SST was obliged to take into account the impacts on the significance of all designated heritage assets affected so that they were weighed, without, of course, having to give reasons which went through all of them one by one.”
Ground 5 (iii)
“The focus of the claimant’s oral submissions was that the defendant failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the western cutting and portal, firstly, to cover approximately 800m of the cutting and secondly, to extend the bored tunnel so that the two portals are located outside the western boundary of the WHS.”
“The relevant circumstances of the present case are wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the SST was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the SST could choose whether or not to take into account. I reach this conclusion for a number of reasons, the cumulative effect of which I judge to be overwhelming. “
Holgate J goes on to set out in detail nine reasons on which he relies (see paragraphs 278 to 288 of the judgment).
The Secretary of State has an uneasy summer ahead: whether or not he seeks permission to appeal, is this a scheme he is still wedded to, cheek by jowl with his transport decarbonisation plan and promised review of the National Networks NPS? Awkwardly, the prime minister had only recently referred to the project in his 15 July 2021 levelling up speech as “critical and overdue”.
Can you make a u-turn on a trunk road?
Simon Ricketts, 30 July 2021
Personal views, et cetera
We will be discussing the case on clubhouse on 10 August (link here), our regular Planning Law, Unplanned panellist Victoria Hutton having appeared for the successful claimant. However, this coming Tuesday, 3 August 2021, our topic will be ££ affordable workspace in section 106 agreements: Why? how?££ led by my Town Legal colleague Lucy Morton and leading economist Ellie Evans (Volterra) plus other special guests. Join us! Link here.
SIMONICITY 