Chickens**t EIA

An interesting example last week of the legal pitfalls should planning permission be granted on the basis of inadequate environmental impact assessment.

Interesting partly because although the messages read straight across to all EIA development, including the glitziest of urban development projects, the specific question arose in a very different context:

Did a local planning authority, when granting planning permission for an intensive poultry-rearing facility, fail to consider the likely effects of odour and dust arising from the disposal of manure?

The basis for the error was a misplaced assumption that certain effects would be controlled by other regulatory processes. That is an issue which potentially arises in various development contexts.

The case is R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019), with Lindblom LJ giving the lead judgment.

For a summary of the case, apologies but I will plug again Town’s “free to subscribe” weekly updating service that covers all Planning Court cases and appeals from the Planning Court. The case is summarised by my colleague Paul Arnett in the latest update.

There is much in the judgment about the proper interpretation of environmental permits under the IPPC regime and the extent to which a local planning authority should impose conditions to control matters which may in theory be controlled by other legislation where the regulator under that legislation (in this case the Environment Agency) has indicated that in practice it would not enforce, but what was particularly interesting to me was Lindblom LJ’s conclusion that at first instance Deputy Judge Rhodri Price Lewis QC “was wrong to conclude that the EIA undertaken for the proposed development – in particular the assessment of the likely effects of odour and dust arising from the storage and spreading of manure – was adequate and lawful.

The “project description” part of the environmental statement explained what was proposed:

In chapter 3, “Description of development”, in the “Project Description”, it explained that “[at] the end of each flock cycle, the buildings are cleaned out and the manure removed … and loaded directly in waiting vehicles, which are sheeted and the manure removed from the site for disposal as a sustainable fertiliser on agricultural land.”

The claimant, Ms Squire, was concerned that the 2,322 tonnes of manure to be produced annually would be disposed of by spreading it on farmland close to residential areas, including farmland not not owned by the prospective operator of the facility, Mr Bower. So how were the potential effects in terms of odour and dust, from these proposals, assessed in the environmental statement?

In its assessment of likely significant effects in the environment, the environmental statement relied significantly on an environmental permit that had been issued by the Environment Agency to Mr Bower to cover the activities proposed on his land.

In chapter 9, “Environmental Management”, under the heading “Assessment”, it acknowledged (in paragraph 9.2) the requirement for “an IPPC permit … administered by the Environment Agency”. It said that “[the] permit must take into account the whole environmental performance of the plant, covering e.g. emissions to air, water and land, generation of waste …”, and also this:

9.2 … As the proposed poultry unit will be controlled under the IPPC permitting regime, the likelihood of significant impact on the environment from the proposed development is negligible due to the strict regime of control.”

On “Odour Management”, it said that “[the] development [has] been assessed as part of the IPPC permit application and deemed acceptable subject to odour control conditions”, and that “[the] site is subject to the IPPC permit conditions which requires emissions from the activities shall be free from odour at levels likely to cause pollution outside the site” (paragraph 9.4). On “Dust”, it said that “[the] results of the DEFRA research project demonstrated that emissions from poultry units in terms of particulate matter reduced to background levels by 100m downwind of … even the highest emitting poultry houses” (paragraph 9.7). On “Manure Disposal”, it said (in paragraph 9.11):

“9.11 The proposed poultry units will operate on a floor litter basis and will generate poultry manure. The manure will be disposed of through use as a sustainable agricultural fertiliser. The [applicant’s] manure management plan is attached to this statement as Appendix 4.”

The “Summary” in paragraph 9.16 said this:

9.16 The operation of the site is subject to the rigorous controls of the Environment Agency’s IPPC permitting regime. The site is required to operate to Best Available Techniques and the conditions of the permit require the site to be free from pollution.”

However, the Environment Agency’s response to consultation had made it clear that “[f]or the avoidance of doubt we we would not control any issues arising from activities outside of the permit installation boundary“.

Lindblom LJ noted the following in relation to the environmental statement:

⁃ it did not identify the third party land on which manure was going to be spread.

⁃ there was no meaningful assessment of the effects of odour and dust from the spreading of manure, either on Mr Bower’s land or on any other farmer’s. “It did not seek to anticipate the content of any future manure management plan, including the fields to which it would relate, or the arrangements that would be undertaken for the storage and spreading of manure. It did not attempt to predict and assess the polluting effects of those activities either on land owned by Mr Bower, or on other land to which the manure management plan would not relate. The Manure Management Report did not venture to assess the effects of the arrangements to which it referred. In short, there was no relevant assessment.”

⁃ “it cannot simply be inferred from the relevant parts of the environmental statement that its authors had concluded that the proposed storage and spreading of manure on farmland was not a potential source of pollution, including odour and dust, with significant effects on the environment, which ought to be addressed in determining the application for planning permission. Those who prepared the environmental statement – and Cymru ADAS Wales, who prepared the Manure Management Report in Appendix 4 – were of course entitled to assume that the Environment Agency would perform its regulatory functions as it should, and as far as they went (see my judgment in Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] Env. L.R. 18, at paragraphs 89 to 93; the judgment of Glidewell L.J. in Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env. L.R. 37, at p.49; and the judgment of Gilbart J. in Frack Free Balcombe Residents’ Association v West Sussex County Council [2014] EWHC 4108 (Admin), at paragraph 100). The control that would be exerted by the Environment Agency through the environmental permit was clearly a factor they had in mind. However, they did not attempt to relate that control to the spreading of manure on land to which the permit and its conditions would not apply. Nor did they consider whether a gap would exist between the control under the permit and such control as could be exercised through restrictions and requirements imposed in the planning process. The Manure Management Report touched upon measures by which harmful effects on the environment might be reduced. But it did not consider what measures were likely to be applied on third party land, in what form such measures might be imposed as requirements attached to the planning permission – whether by conditions or by a planning obligation under section 106 of the Town and Country Planning Act 1990 – or how effective they were likely to be in reducing the effects of odour and dust.”

⁃ “the future manure management plan to which the planning officer referred in paragraph 6.7.5 of his report was not a substitute for the assessment lacking in the environmental statement. Not only was it yet to come into existence, but even when it did it was only going to relate to the storage and spreading of manure on Mr Bower’s own land, and not to the substantial quantities that were going to have to be disposed of elsewhere.”

The judge concluded:

In my view, therefore, the environmental statement was deficient in its lack of a proper assessment of the environmental impacts of the storage and spreading of manure as an indirect effect of the proposed development. In this respect it was not compliant with the requirements of the EIA Directive and the EIA regulations.”

The judge then considered whether any advice in the report to committee satisfactorily addressed the inadequacies in the environmental statement. There was not. Nothing “went beyond generalities“.

He therefore allowed the appeal – the planning permission had been issued unlawfully.

Before deciding to quash the permission, Lindblom LJ then considered whether under section 31 (2A) of the Senior Courts Act 1981, the permission should not be quashed on the basis that it was highly likely that the council’s decision would have been substantially different had the legal error not occurred. Mr Bower sought to argue that the position had changed because, after the proceedings had been issued, he had entered into a section 106 unilateral undertaking so as to control the effects arising by way of a manure management plan. The judge did not consider that the undertaking saved the permission from being quashed:

The planning obligation itself illustrates some of the uncertainties persisting at the time of the council’s decision. It does not, however, overcome the lack of a proper assessment of the environmental effects of odour and dust in the EIA. There is, in my view, no justification here for withholding an order to quash the planning permission, which will enable the council, when redetermining the application, to ensure that the requirements of the EIA Directive and the EIA regulations are properly complied with“.

The lesson is to make sure that any environmental statement properly assesses all direct and indirect environmental effects that are likely to arise from a development, without reaching unwarranted assumptions that effects will be limited, or that mitigation will be achieved, by way of separate regulatory processes. If the local planning authority considers that the assessment is inadequate it should require further environmental information to be provided (following the procedure set out in regulation 25 of the 2017 Environmental Impact Assessment Regulations). I am surprised that the court was even prepared to consider whether deficiencies were in practice remedied by any analysis in the committee report, and not surprised that the belated decision to enter into a section 106 unilateral undertaking did not save the day.

This is no Chicken Little message that the sky is falling, but Squire is certainly a reminder of the care that is needed, particularly in relation to environmental impact assessment, in order to avoid landing in the unpleasant stuff.

Simon Ricketts, 1 June 2019

Personal views, et cetera

The Office For Environmental Protection

And through it all the Office for Environmental Protection

A lot of love and affection

Whether I’m right or wrong..”

The Secretary of the Environment, Food and Rural Affairs, Michael Gove, presented the draft Environment (Principles and Governance) Bill to Parliament on 19 December 2018.

It is important that we understand the new regime that is proposed and start to form views as to whether it is fit for purpose, given that (1) its provisions will replace the environmental protections currently provided by way of EU law and that (2) it would be unfortunate if any new system were to introduce additional uncertainties, unnecessary requirements or causes of delay. What will the implications be for the English planning system?

Having said that we don’t yet have the full picture.

First, because (following a commitment given by the prime minister in July 2018) this draft Bill is going to be rolled into a wider Environment Bill in 2019 which, according to the draft Bill’s foreword by Michael Gove, “will contain specific measures to drive action on today’s crucial environmental issues: cleaning up our air, restoring and enhancing nature, improving waste management and resource efficiency, and managing our precious water resources better.”

Secondly, because this draft Bill does not yet include the Government’s commitment in the withdrawal agreement to “non regression” from current EU environmental laws (see my 16 November 2018 blog post Big EU News! (Latest CJEU Case on Appropriate Assessment & A Draft Withdrawal Agreement))although of course we wait to see what happens to that agreement, yet to be approved by Parliament.

Thirdly, because the provisions in the draft Bill are a framework for more detail to come forward by way of, for instance, a Government policy statement on environmental principles and a strategy to be prepared by the proposed Office for Environmental Protection setting out how it intends to exercise its functions. More on this later. What this draft Bill does do is discharge the requirement in section 16 of the EU (Withdrawal) Act 2018 for draft legislation to be published setting out the way in which environmental principles will be maintained post-Brexit, and the statutory body that will be established to police them (see my 18 September 2018 blog post Planning, Brexit).

Deal or no deal?

The intention is that this new legal regime should in place ready for when we leave the jurisdiction of EU law. Whilst if we have a withdrawal agreement this will be at the end of any transition period, we could be left with a potential hiatus in the case of a “no deal” Brexit. If there’s no deal there will be more urgently newsworthy issues than the implications of that situation for the environment (it was noteworthy that the publication of the draft Bill last week attracted no real attention from the mainstream media as far as I could see) but this was rightly a matter of concern for the House of Commons Environmental Audit Committee in its report on the Government’s 25 Year Plan for the Environment, to which the Government in its 6 November 2018 Response said this:

Government is confident of leaving the EU with a deal on an implementation period, which the EU has also confirmed it would like to agree. However, we are stepping up preparations within government and Defra to make sure that a new statutory body is in place as soon as is practically achievable in the event of a no deal exit, with the necessary powers to review and, if necessary, take enforcement action in respect of ongoing breaches of environmental law after the jurisdiction of the CJEU has ended. This will mean that the Government will be held accountable as under existing EU law from the day we leave the EU.

As mentioned previously, the EU (Withdrawal) Act will ensure existing EU environmental law continues to have effect in UK law after exit, providing businesses and stakeholders with maximum certainty as we leave the EU. Until the new body is in place, for example, existing mechanisms will continue to apply: the Parliamentary Ombudsman will process complaints about maladministration; and third parties will be able to apply for Judicial Review against government and public authorities.”

The draft Bill

If you click into the draft Bill – and please do because this blog post is not a complete summary – you will see that the draft legislation itself (34 clauses and a schedule) is sandwiched between:

⁃ Michael Gove’s foreword – the first paragraph will give you an idea of the tone:

Leaving the European Union is a once-in-a-lifetime opportunity for this country to help make our planet greener and cleaner, healthier and happier. We are seizing this chance to set a new direction for environmental protection and governance, in line with the government’s ambition to leave our environment in a better state than we inherited it.”

⁃ A long set of explanatory notes which include an explanation of the policy and legal background as well as a detailed commentary on the provisions of the draft Bill, including much by way of statements of what is intended that is absent from the draft Bill itself.

The foreword describes the two main strands of the draft Bill (although in the reverse order to how they are actually dealt with).

Firstly, we will establish a world-leading, statutory and independent environment body: the Office for Environmental Protection (OEP). This body will scrutinise environmental policy and law, investigate complaints, and take action where necessary to make sure environmental law is properly implemented.

Secondly, we will establish a clear set of environmental principles, accompanied by a policy statement to make sure these principles are enshrined in the process of making and developing policies

Definitions

The “environment” can often have a broad meaning.

For instance in the Environmental Impact Assessment Directive the following factors need to be addressed in environmental impact assessment:

“(a) population and human health;
(b) biodiversity, […];
(c) land, soil, water, air and climate;
(d) material assets, cultural heritage and the landscape;

(e) the interaction between the factors referred to in points (a) to (d).”

However, in the draft Bill a much narrower definition is adopted:

“31 (2) Environmental matters are—

(a)  protecting the natural environment from the effects of human activity;

(b)  protecting people from the effects of human activity on the natural environment;

(c)  maintaining, restoring or enhancing the natural environment;

(d)  monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”

So this is just about the “natural environment“, defined in clause 30 as

“(a)  wild animals, plants and other living organisms,

(b)  their habitats,

(c)  land, water and air (except buildings or other structures and water or
air inside them),

and the natural systems, cycles and processes through which they interact.”

Environmental law” is even narrower, as it is defined as any legislative provision (other than legislation devolved to the Scottish Parliament, Welsh Assembly or, without the Secretary of State’s consent, the Northern Ireland Assembly) that is mainly concerned with an environmental matter and that is not concerned with an excluded matter – excluded matters are:

⁃ greenhouse gas emissions;

⁃ access to information;

⁃ the armed forces, defence or national security;

⁃ taxation, spending or the allocation of resources with government.

The Secretary of State can by regulations specify specific legislative provisions as falling within or outside the definition of “environmental law“.

The explanatory notes to the draft Bill say that, based on these provisions “most parts of legislation concerning the following matters, for example, would normally be considered to constitute environmental law:

⁃ air quality (although not indoor air quality);

⁃ water resources and quality;

⁃ marine, coastal or nature conservation;

⁃ waste management;

⁃ pollution;

⁃ contaminated land.

They go on to assert that the following matters would not normally constitute environmental law:

⁃ forestry;

⁃ flooding;

⁃ navigation;

⁃ town and country planning;

⁃ people’s enjoyment of or access to the natural environment;

⁃ cultural heritage;

⁃ animal welfare or sentience;

⁃ animal or plant health (including medicines and veterinary products);

⁃ health and safety at work.

“”Environmental principles” means the following principles—

(a)  the precautionary principle, so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  the principle of public access to environmental information,

(h)  the principle of public participation in environmental decision-making, and

(i)  the principle of access to justice in relation to environmental matters”

What the Secretary of State must do

The draft Bill provides that Secretary of State must prepare a policy statement on environmental principles. “The statement must explain how the environmental principles are to be interpreted and proportionately applied by Ministers of the Crown in making, developing and revising their policies.” It may also explain how ministers, “when interpreting and applying the environmental principles, are to take into account other considerations relevant to their policies.” Ministers must “have regard” to the policy statement “when making, developing or revising policies dealt with by the statement“. Nothing in the statement shall require a minister to take (or to refrain from taking) any action if it “would have no significant environmental benefit” or “would be in any way disproportionate to the environmental benefit“.

Wow! Regardless of how robust or otherwise the policy statement turns out to be, count the get-outs in that last paragraph.

The draft Bill also provides that the Secretary of State must prepare an environmental improvement plan. The first one will be the current document entitled “A green future: our 25 year plan to improve the environment” (11 January 2018). It must be kept under review, with the next to be completed by 31 January 2023 and thereafter at least every five years.

The Office for Environmental Protection

Details of the membership, staffing and functions of this new body are set out in the schedule to the draft Bill.

The Office for Environmental Protection would monitor and report on environmental improvement plans, monitor the implementation of environmental law, and advise on proposed changes to environmental law. It would also have an important enforcement role.

It must prepare a strategy setting out how it intends to exercise its functions, including its complaints and enforcement policy, having regard to “the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases—

(a)  that relate to ongoing or recurrent conduct,

(b)  that relate to conduct that the OEP considers may cause (or has caused) significant damage to the natural environment or to human health, or

(c)  that the OEP considers may raise a point of environmental law of general public importance.”

The explanatory notes suggest that individual planning decisions will not be a focus of the OEP’s attention:

The definition of national implications will be for the OEP to determine, but this provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of primarily local concern. For example, an individual local planning or environmental permitting decision would not normally have national implications, whereas a matter with impacts or consequences which go beyond specific local areas or regions could have.

Anyone except public bodies can raise a complaint with the OEP where a public authority has failed to comply with environmental law. The public authority’s internal complaints procedure must first have been exhausted. The explanatory notes state:

A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures which will apply to their functions concerned with the implementation of environmental law.”

Complaints must be made within a year of the failure complained of, or within three months of when any internal complaints procedure was exhausted. The OEP “may” carry out an investigation if in its view the complaint indicates that the authority has failed to comply with environmental law and “the failure is serious“. It must provide to the authority a report as to whether it considers that the authority has failed to comply with environmental law, its reasoning and recommendations (whether for the authority or generally) in the light of its conclusions. There will be a process of information notices and decision notices. The authority receiving a decision notice must respond within two months or such later timescale is given, setting out whether it agrees with the notice and what steps it intends to take.

There is then a curious clause, clause 25, which deals with enforcement. Within three months of the deadline for the authority responding to the decision notice, the OEP can make an application to the High Court for judicial review. After any such proceedings, the relevant authority must publish a statement “that sets out the steps (if any) it intends to take in light of the outcome of those proceedings“.

So what would these proceedings seek to achieve? A declaration from the court or something more, some kind of enforcing order? Would the authority’s decision that is the subject of the complaint be liable to be quashed? If so, plainly concerns arise that decisions will no longer be able to be safely relied upon by parties where the usual judicial review period has expired – it would be worrying if decisions could be at risk for much longer via this elongated OEP complaints procedure.

Concluding thoughts

Without seeing the rest of what will be in the eventual Environment Bill, and without see the nature of any “non regression” commitment (if indeed it survives the current politics), I’m left feeling entirely unclear what practical role the mechanisms in the draft Bill will really have. There are certainly numerous questions:

⁃ Are the definition of environmental matters and environmental law too narrow?

⁃ Will the policy statement on environmental principles either be too weak or alternatively extend its reach into other regimes, for instance leading to the risk of causing confusion as to the application of principles set out in the National Planning Policy Framework?

⁃ Are there too many get-outs on the part of Government?

⁃ Will the OEP really be able to influence the Government’s approach when it comes to politically contentious issues? The Committee on Climate Change has not been a good precedent.

⁃ Is there confusion as to the role of the OEP when it comes to investigating possible breaches of environmental law, in that surely this is a matter for existing enforcement bodies such as the Environment Agency and for the courts?

And whilst from the explanatory notes the intention appears to be that this regime would not directly affect town and country planning, in reality matters such as environmental impact assessment, strategic environmental assessment and the treatment of protected nature conservation sites are central to the planning process, so it seems to me that unfortunately this isn’t a debate that planners and planning lawyers can ignore.

Simon Ricketts, 22 December 2018

Personal views, et cetera

All About That Base

Good planning relies on good baselines. Determining the correct baseline or fallback position is the vital starting point for determining the effects that a development proposal would have, but is not easy – often involving the need for judgment as to what can be done in any event without planning permission or what the position would be in any event in terms of, for instance air quality, highways movements or the effect on the level of daylight and sunlight that existing properties enjoy.

In Wiltshire Waste Alliance Limited v Secretary of State (Sir Ross Cranston, 10 May 2018), an inspector had granted permission on appeal for the extension of a waste recycling plant.

Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.

In his decision letter the inspector had identified that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”

The planning permission for the existing facility did not include any condition restricting the amount of waste that could be treated, but the application for it had indicated a figure of up to 25,000 tonnes per annum for one area, whereas the fallback position being relied upon by the operator at the appeal had assumed that this could be increased to 75,000 tonnes without the need for planning permission. It argued that the 25,000 figure was no limitation (applying the I’m Your Man case, recently approved of by the Court of Appeal in Lambeth LBC v Secretary of State). The claimant argued that the inspector had not considered whether such an increase in the quantity of material treated would have amounted to a material change of use by way of intensification. Retired High Court judge Sir Ross Cranston accepted the claimant’s argument, but also determined, as had been conceded by the Secretary of State, that the inspector had also wrongly noted that the application document referring to the 25,000 tonnes figure had not been incorporated by reference into the permission. Sir Ross Cranston’s summary of the arguments and reasoning is brief. (In the light of the Lambeth case I don’t see how incorporation by reference of the application document is relevant.)

As well as meaning that the inspector had made a legal error in the way that he had considered the fallback position, the judge accepted that the approach that had been taken “has the potential to infect the conclusions regarding the baseline scenarios” for the purposes of assessment of likely significant environmental effects in the environmental impact assessment.

It is a cautionary tale – ensure that you can justify any fallback or baseline position that you rely upon.

Whilst it didn’t matter for the purposes of the judgment, I assume that the proposal was assessed under the 2011 EIA Regulations. The 2017 Regulations are more prescriptive. EIA now needs to include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge“.

The more far-reaching and longer-term the effects of a project, the more complex the analysis ends up being, as can be seen from the Secretary of State’s decision dated 10 May 2018 to authorise the development consent order applied for by Transport for London in relation to the proposed Silvertown twin-bore road tunnel under the Thames (a scheme which also was promoted under the previous EIA legislation). The task of analysing what would be the position in terms of issues such as congestion and air quality is complex. There will be much focus on his conclusion on air quality effects in particular, namely that “greater weight needs to be placed on the impact of the Development on the zone [for the Greater Urban London area as a whole] rather than at individual receptors. The Secretary of States therefore places weight on the fact that whilst some receptors will experience a worsening in air quality as a result of the Development, overall the Development should have a beneficial impact on air quality and that the Development is not predicted to delay compliance with the [Air Quality Directive] in the timeframes that the Updated [Air Quality Plan], including the zone plan for the Greater Urban London area, sets out as being the quickest possible time.”

We have seen recently how assumptions as to air quality levels can be proved wrong in ways that are unexpected, such as the VW emissions scandal that threw into question the degree to which air quality levels would improve as newer vehicles replaced older ones on the road, or ways which are possibly less unexpected, such as the Government’s delayed compliance with the Air Quality Directive.

Accurate analysis is of course equally necessary with more routine non-EIA projects: that is, accurate analysis both in the relevant technical assessment, whatever it may be, and accurate analysis by the decision maker in taking it into account in reaching a decision. R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) was a recent example of a planning permission being quashed (that the council had granted to itself for an affordable housing development) because of incorrect conclusions being drawn from a report on sunlight and daylight issues, that in itself was held to be significantly misleading in a number of respects, both in relation to the relevant baseline position and in its analysis of compliance with the relevant BRE guidelines that had been incorporated into the council’s local plan. However, every case inevitably turns on its own facts and, as the judge identified, the threshold for challenge is high:

⁃ Baroness Hale in Morge v Hampshire County Council (Supreme Court, 19 January 2011: “reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves

⁃ Lindblom LJ in Mansell v Tonbridge and Malling Borough Council(Court of Appeal, 8 September 2017): “The question for the court will always be whether, on a fair reading of his report as a whole, the officer has significantly misled the members on a matter bearing upon their decision, and the error goes uncorrected before the decision is made. Minor mistakes may be excused. It is only if the advice is such as to misdirect the members in a serious way—for example, by failing to draw their attention to considerations material to their decision or bringing into account considerations that are immaterial, or misinforming them about relevant facts, or providing them with a false understanding of relevant planning policy—that the court will be able to conclude that their decision was rendered unlawful by the advice they were given.


Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact.., or has plainly misdirected the members as to the meaning of a relevant policy… There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law…. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere
.”

⁃ Section 31 (2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless it is appropriate to disregard this “for reasons of exceptional public interest.”

Simon Ricketts, 12 May 2018

Personal views, et cetera

EU Court Ruling: Ignore Mitigation Measures In Habitats Screening

POW, indeed. The People Over Wind ruling (Court of Justice of the EU, 12 April 2018) is short but striking.

The issue is an important one. There are two steps that a decision maker must follow in determining whether a plan or project is likely to affect a Special Area of Conservation under the Habitats Directive or a Special Protection Area under the Birds Directive (given domestic effect by the Conservation of Habitats and Species Regulations 2017).

The first step is what is commonly called “screening”, although it is not a formal procedural process as there is with EIA. At this stage the question is whether the plan or project is likely to have a significant effect on an SAC or SPA (either alone or in combination with other plans or projects). “Likelihood” is a low threshold – as summarised in People Over Wind:

In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned“.

If the risk of a significant effect can be excluded at this stage, no further work is required under the Birds or Habitats Directive.

If the risk of a significant effect cannot be excluded, “appropriate assessment” is required to determine that the plan or project will not adversely affect the integrity of the SAC or SPA. If the answer at this stage is other than that it will not, the plan or project is in problems as there are only limited circumstances which would then allow it still to proceed.

Screening out the need for appropriate assessment is important to promoters of plans and projects:

⁃ it reduces the amount of work, time and cost spent, particularly in relation to smaller schemes if the screening stage can be relatively standardised for similar types of development (for instance residential developments in the vicinity of SPAs such as the Thames Basin Heaths).

⁃ paragraph 119 of the NPPF provides that the “presumption in favour of sustainable development (paragraph 14) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined.” (This is carried over into paragraph 174 of the draft revised NPPF).

The English courts have long taken the position that proposed mitigation measures can be taken into account at the screening stage. Indeed Sullivan J’s ruling almost exactly ten years ago in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government (Sullivan J, 1 May 2008) was crucial in establishing the practicality of local authorities relying on the funding or provision of Suitable Alternative Natural Greenspace (SANGS) rather than requiring appropriate assessment in relation to each housing project that might lead to an increase in people wishing to use the nearby SPA for recreational purposes. He held that there was no reason why a commitment to provide mitigation in the form of SANGs could not be taken into account at screening stage:

…if the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects, and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary. Under Regulation 48(2), the competent authority may ask the proponent of a plan or project for more information about the plan or project, including any proposed mitigation, not merely for the purposes of carrying out an appropriate assessment, but also in order to determine whether an appropriate assessment is required in the first place. If for any reason the competent authority is still not satisfied, then it will require an appropriate assessment. As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged“.

That has remained the domestic law, as can be seen in R (Champion) v North Norfolk District Council (Supreme Court, 22 July 2015), where the reason why the permission was quashed was that at the screening stage the mitigation measures relied upon had not been fully identified.

However, the European Court of Justice has now driven somewhat of a bulldozer through this approach in its ruling this month in relation to a reference from the Irish High Court in relation to proceedings which had been brought by the People Over Wind campaign group and campaigner Peter Sweetman (not his first visit to the Luxembourg court, see Sweetman v. An Bord Pleanala (CJEU, 11 April 2013)) to seek to quash permission for a project to lay a cable connecting a wind farm to the electricity grid, potentially affecting rivers constituting a habitat for the “Nore pearl mussel”. According to the judgment, the consultants’ screening report for the project concluded as follows:

“a)      In the absence of protective measures, there is potential for the release of suspended solids into waterbodies along the proposed route, including directional drilling locations

b)      With regards to [the Nore pearl mussel], if the construction of the proposed cable works was to result in the release of silt or pollutants such as concrete into the pearl mussel population area of river through the pathway of smaller streams or rivers, there would be a negative impact on the pearl mussel population. Sedimentation of gravels can prevent sufficient water flow through the gravels, starving juvenile [Nore pearl mussels] of oxygen.’

18      It is apparent from the file before the Court that ‘protective measures’ were also analysed by that report.

19      Subsequently, on the basis of that report, the following recommendation was drawn up for Coillte by the ‘programme manager’:

As set out in detail in the … appropriate assessment screening report, on the basis of the findings of that report and in light of the best scientific knowledge, the grid connection works will not have a significant effect on the relevant European sites in light of the conservation objectives of the European sites, alone or in combination with the Cullenagh wind farm and other plans or projects, and an appropriate assessment is not required. This conclusion was reached on the basis of the distance between the proposed Cullenagh grid connection and the European sites, and the protective measures that have been built into the works design of the project.’”

The Irish High Court referred the following question to the European Court of Justice for a preliminary ruling:

“Whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive?’”

Even for the CJEU the resulting judgment is brief.

…it is settled case-law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (judgment of 26 May 2011, Commission v Belgium, C‑538/09, EU:C:2011:349, paragraph 39 and the case-law cited). The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 45 and the case-law cited).”

35      As the applicants in the main proceedings and the Commission submit, the fact that, as the referring court has observed, measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out.

36      That conclusion is supported by the fact that a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment.

37      Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.

38      In that regard, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 50 and the case-law cited).”

It is a frustrating judgment. There are so many unasked and unanswered questions arising from it, for instance:

1. Why does reference to mitigation measures presuppose that without the measures there is likely to be a significant effect?

2. Why is it assumed that there can be no certainty as to the effectiveness of proposed mitigation measures?

3. Why is there no dividing line between mitigation on the one hand and avoidance/reduction on the other (a distinction raised by Sullivan J in Hart, where he didn’t necessarily accept that the SANGs mechanism amounted to mitigation as opposed to avoiding effects in the first place) and where is the dividing line between mitigation and components of the project itself? If an inherent part of the project (say soundproof walls) also serves a mitigation function, surely it is not to be ignored. In which case, what is included in the project and what is mitigation that is not an integral or inherent part of the project is a crucial question.

It is going to be interesting to see how UK practice adapts in relation to the ruling and how soon the issue comes before the courts. Will attempts be made to distinguish it (that is possible) or will plan and project promoters take a more cautious approach of proceeding more frequently to appropriate assessment? Will this be the sort of issue where, post- Brexit, the domestic courts will begin to take an increasingly differing stance to Luxembourg?

There is a potentially wider question, as to whether the same “ignore mitigation” principle will begin to infect the EIA process where, again, the relevance of proposed mitigation measures at screening stage has long been accepted (see eg Gillespie v Secretary of State for Transport Local Government and the Regions(Court of Appeal, 27 March 2003)).

There is no reference to the EIA Directive in People Over Wind but it will be one to watch. It would be quite a step, given that the EIA Regulations specifically require that a negative screening opinion or direction should “state any features of the proposed development and measures envisaged to avoid, or prevent what might otherwise have been significant adverse effects on the environment“!

Lastly, on the subject of screening under the Habitats and Birds Directives, R (Mynnydd y Gwynt Limited) v Secretary of State (Court of Appeal, 22 February 2018) is another recent case worth reading, which demonstrates the difficulties of challenging any decision by a competent authority that appropriate assessment is required. The claimant, promoting a wind farm by way of a DCO, was perhaps entitled to feel rather sore. National Resources Wales had first taken the view that appropriate assessment was not required but then changed its position, saying that more information was required. The examiner was on balance satisfied but in the light of NRW’s concerns advised the Secretary of State that she might decide that an appropriate assessment was necessary, which indeed in due course she did. Back to the drawing board.

The Secretary of State’s determination was challenged, alleging that she had erred by:

“1)  Requiring certainty in relation to each element of the data, instead of using the available information and making a reasoned judgement, always taking the precautionary approach.

2)  Reaching an inconsistent conclusion about the in-combination level of risk to the red kite population in this SPA to those reached in relation to other Mid-Wales windfarm proposals.

3)  Not referencing or showing that she had considered the Appellant’s December 2014 response to NRW’s concerns about survey methodology

The court rejected the challenge:

For this appeal to succeed, it must be shown that the judge was wrong not to have concluded that the Secretary of State’s decision was unlawful on Wednesbury principles – that she had taken account of irrelevant matters or failed to take account of relevant matters, or that her decision was so unreasonable that no reasonable authority could have made it.

For my part, I am not persuaded that the Secretary of State’s decision was unlawful, nor that the judge’s careful review of the decision was wrong. The Secretary of State was required to exercise a judgement at the junction between two important social objectives – renewable energy and species protection. She was faced with a conflict of views between her statutory conservation adviser and her examiner. She asked for further assistance: NRW responded, the Appellant did not. I accept that the Secretary of State might have been persuaded by the arguments that found favour with the examiner, but in the overall circumstances I consider that she was entitled to accept the advice of NRW and conclude that she did not have the information necessary to enable her to grant the application.”

Whilst it may be frustrating for clients and professional teams alike, these cases demonstrate the care that needs to go into the promotion strategy for any scheme (including the definition of the project itself) where there is a potential impact on an SAC or SPA, and the importance of resolving matters with the relevant conservation bodies – as well as the degree of scientific work required, which often feels like an endless search to prove a negative which may ultimately be unprovable. Mitigation or not, life isn’t as certain as the legislation requires it to be.

I just wish I understood the rationale for that People Over Wind ruling. If you do I would be delighted to hear it.

Simon Ricketts, 20 April 2018

Personal views, et cetera

What The EU (Withdrawal) Bill Would Mean For (eg) EIA

So now we have, without any great surprises, what was first to be the Great Repeal Bill, then the Repeal Bill and now is the European Union (Withdrawal) Bill. It comes alongside extensive Explanatory Notes as well as a Memorandum justifying the use of delegated powers in the Bill .
This is a very narrowly defined blog post, asking myself one question: What does the Bill tell us in England about what will happen to EU law based legislation such as the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 once we reach the “exit date” (defined in the Bill as a date to be appointed by a minister but in practice to be 29 March 2019 or earlier, due to service by the Government of its Article 50 notice on 29 March 2017)? I have confined myself to England: there are additional complexities ahead for the devolved administrations. 
The EIA Regulations are EU-derived domestic legislation, as defined in the Bill, deriving as they do from the EIA Directive ie Directive 2011/92/EU as amended in 2014 by Directive 2014/52/EU. 
Clause 2(1) of the Bill provides:
“EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

So the Regulations will remain in force unchanged post exit day.   
For the avoidance of doubt clause 5(1) provides:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

So any change to environmental protection that is made following exit date cannot be challenged on the basis that it is contrary to EU law. Legislation excluding say the construction of a specific infrastructure project or type of infrastructure from EIA, or weakening its operation? There would no longer be any recourse to the Court of Justice of the EU (CJEU). But that would be the effect of leaving the EU in any event, so hardly needs to be spelt out. 
(Of course, the Government will need to ensure that any such legislation did not breach other international obligations such as the Espoo Convention and Aarhus Convention – where breaches are far more difficult to challenge by a complainant, whether in the domestic courts or in any international forum)
At present, in interpreting EU-derived legislation, our domestic courts have to apply EU law principles, having regard to decisions of the CJEU. After exit day, this will no longer be the case, in that there will be no requirement to have regard to post exit day decisions. Clause 6(1) provides:
“A court or tribunal

(a)  is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and 

(b)  cannot refer any matter to the European Court on or after exit day.

Clause 6(2) makes it clear that a court may do “if it considers it appropriate to do so” but does not have to. So, (1) there will be uncertainty as to whether to bring post exit day CJEU rulings or advocate-general opinions before the domestic court to assist with interpretation (and so in practice they will be trawled out) and (2) CJEU jurisprudence is likely slowly to take a different direction to that of our domestic courts. Not straight-forward!
For a period from the coming into law of the Bill and two years after exit day, the Government will be going through all EU-law derived legislation, with the objective of making it continue to work post Brexit. Clause 7(1) provides:
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— 

(a)  any failure of retained EU law to operate effectively, or 


(b)  any other deficiency in retained EU law, 


arising from the withdrawal of the United Kingdom from the EU. “

The justification in the accompanying memorandum: “Retained EU law will contain thousands of failures and deficiencies. This power enables UK ministers and the devolved authorities to make corrections in time for exit to ensure a functioning statute book.

Clause 7(6) contains some protections:
But regulations under this section may not— 

(a)  impose or increase taxation,

(b)  make retrospective provision, 


(c)  create a relevant criminal offence, 


(d)  be made to implement the withdrawal agreement, 


(e)  amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or 


(f)  amend or repeal the Northern Ireland Act 1998 (unless the regulations
 are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment). “


The memorandum says this by way of example: “The impact of not making such changes would include inadvertently removing environmental protections. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to “other EEA States” in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to “other EEA States” to “EEA States”, would make it clear that the requirement on transboundary consultation continues to function on exit as it does now. This would remove uncertainty and help ensure that an important piece of environmental protection law continues to operate effectively. “

I referred to obligations arising under other international obligations. Clause 8(1) provides:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from 
the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom.

The memorandum more generally seeks to justify the breadth of use of delegated ministerial powers under the Bill:
“i. Time: The two year timetable for exit is provided for in Article 50 of the Treaty on the European Union. Therefore, the UK needs to be in a position to control its own laws from March 2019, which is why the UK Government and devolved administrations need to take a power so they can act quickly and flexibly to provide a functioning statute book. The complexity of identifying and making appropriate amendments to the converted and preserved body of law should not be underestimated. There is over 40 years of EU law to consider and amend to ensure that our statute book functions properly on our exit from the EU. According to EUR- Lex, the EU’s legal database, there are currently over 12,000 EU regulations and over 6,000 EU directives in force across the EU.2 We are not yet in a position to set out in primary legislation how each failure and deficiency should be addressed, nor would it be practical to do so…”

“ii. Practicality: The power will be exercised by UK ministers and the devolved authorities, enabling them to make the necessary corrections to the statute book required to make the law function effectively in their own field of expertise and competence. Making all corrections on the face of the Bill, at this stage, would not be practical. 

iii. Flexibility: Many of the potential deficiencies or failures in law arise in areas in which the UK is considering pursuing a negotiated outcome with the EU. The UK must be ready to respond to all eventualities as we negotiate with the EU. Whatever the outcome, the UK Government and devolved authorities, with the appropriate scrutiny by Parliament and the devolved legislatures, must be able to deliver a functioning statute book for day one post-exit.”

So in the case of environmental impact assessment, are we likely to see any early substantive changes? In my view we won’t. What we will see is amendments made so as to seek to ensue that the Regulations still work in legal terms post exit day and there may be arguments as to whether some of those amendments go beyond what is required to achieve that aim. But the substantive changes (which I’m sure will come) will be for a later stage. The explanatory notes to the Bill say this: “The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.” (para 14). 
This is a commitment that we need to keep the Government to. No changes beyond what is necessary without primary legislation. 

Simon Ricketts, 13.7.17

Personal views, et cetera

The New EIA Regulations

Well the Government cut it fine but the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 were finally laid before Parliament on 19 April 2017 and will come into force on 16 May 2017, along with equivalent regulations in relation to infrastructure planning, water resourceselectricity works, marine works, and land drainage improvement works.
The regulations give effect in England to the EU’s Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment, which was required to be brought into force by member states by that magic 16 May 2017 date. 
My 8.10.16 blog post summarises the main implications of the Directive and expresses some doubt as to whether the Government would meet the deadline. I’m glad that the deadline has been achieved, as inconsistency between EU and domestic requirements as to environmental impact assessment would have made a difficult area, already full of legal trip hazards, even more precarious to navigate.  
The new regulations apply to all EIA development projects unless before 16 May 2016:
– an environmental statement has been submitted;

– a request for a screening opinion or direction has been submitted (in which case the screening is carried out under the 2011 regulations but any EIA will be under the new regime); or

– a request for a scoping opinion or direction has been submitted. 

The changes introduced by the new Regulations are not unduly onerous (and have been flagged by way of the 2014 amending directive for some time now) but there is still a small window for those scheme promoters who would prefer to work to the previous 2011 Regulations. I can see that even small changes in required methodologies may give rise to complications on multi-stage projects where it would be easier, for consistency and to avoid re-doing work, for further environmental statements to continue to address the 2011 rather than 2017 requirements. 
So what are the changes? Colleagues have prepared a black-lined version for internal Town purposes that shows all of the changes as between the 2011 and 2017 versions, which has been invaluable in working through the detail. There has been a lot of tweaking and necessary updating but the main substantive changes are as follows:
Reg 4(2) – there are now express references to assessment needing to include effects on human health, biodiversity, land and climate. 
Reg 4(4) – significant effects to be assessed include “the expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development”. 
Reg 4(5) – “The relevant local planning authority or the Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement”. 
Reg 6 – additional information is now required in requests for screening opinions.
Reg 6(6) – LPA can agree to extend response to screening opinion request beyond the current three weeks period to up to 90 days and can extend the period further in exceptional circumstances if it gives reasons and the date when the delayed determination is now expected. 
Reg 7(5) – equivalent extended deadlines for the Secretary of State in relation to requests for screening directions. 
Reg 18(4)(a) – an environmental statement “must be based on the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development that was subject to that opinion or direction.” (Currently there is no requirement for an environmental statement to take on board all of conclusions of the scoping opinion or direction).  
Reg 18(4)(c) – an environmental statement must “be prepared, taking into account the results of any relevant UK environmental assessment, which are reasonably available to the person preparing the environmental statement, with a view to avoiding duplication of assessment”. 
Reg 18(5) – “In order to ensure the completeness and quality of the environmental statement— 
* (a)  the developer must ensure that the environmental statement is prepared by competent experts; and

* (b)  the environmental statement must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.”

Reg 19(6) – EIA application must not be determined until at least 30 days (was previously 14 days) after copies of the environmental statement were served on consultation bodies.

Reg 20(2)(f) – the LPA must make the environmental statement available online for at least that 30 day period. 
Reg 26 – the decision maker must reach a “reasoned conclusion on the significant effects of the proposed development on the environment”, taking into account their examination of the environmental information submitted and, where appropriate the decision maker’s “own supplementary examination”, “integrate that conclusion into the decision” and “if planning permission or supplementary consent is to be granted, consider whether it is appropriate to impose monitoring measures”. 
Reg 26(4) – “In cases where no statutory timescale is in place the decision of the relevant authority or the Secretary of State, as the case may be, must be taken within a reasonable period of time, taking into account the nature and complexity of the proposed development, from the date on which the relevant authority or the Secretary of State has been provided with the environmental information”.
Reg 27 – where there has to be both an EIA and a Habitats Regulations assessment, the two must be co-ordinated. 
Reg 29 – where planning permission is granted for EIA development, the decision must set out the reasoned conclusion of the decision maker on the significant effects of the development on the environment, any conditions which relate to the likely significant effects of the development on the environment, any measures envisaged to avoid, prevent, reduce and, if possible, offset likely significant adverse effects on the environment and any monitoring measures considered appropriate. 
Reg 30(1)(b) – the consultation bodies are to be informed of the decision in respect of any EIA application. 
Reg 30(1)(d)(iii) – information must be available for public inspection as to the results of consultations undertaken and information gathered.
Reg 35 – “planning authorities in the exercise of their enforcement functions, must have regard to the need to secure compliance with the requirements and objectives of the Directive.”
Reg 64 – objectivity and bias:
“(1) Where an authority or the Secretary of State has a duty under these Regulations, they must perform that duty in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest. 
(2) Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.”

Schedule 2 – the threshold for industrial estate development projects is reduced from 5 hectares to 0.5 hectares. 
Schedule 3, para 3 – more detail as to the types and characteristics of potential impacts to be taken into account in screening Schedule 2 development. 
Schedule 4, para 1 – more detail as to the necessary description of the development in an environmental statement. 
Schedule 4, para 2 – the environmental statement must include a “description of the reasonable alternatives (for example in terms of development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects” (in place of the more lax “outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects”). 
Schedule 4, para 3 – it must also include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.”
Schedule 4, para 10 – it must also include a “reference list detailing the sources used for the descriptions and assessments included in the environmental statement”. 
The explanatory memorandum published with the regulations states that there “are around 500 – 600 environmental statements submitted each year in England through the planning system, representing about 0.1% of all planning applications. There are between 10 – 20 applications for a development consent order under the nationally significant infrastructure planning regime subject to EIA each year”. 
Much of the work of a planning lawyer these days to seek to ensure that environmental impact assessment processes are carried out in a legally correct manner so as not to lead to the unnecessary risk of legal challenge. The new regulations will do nothing to reduce that risk – indeed, particular care will need to be taken in relation to these new requirements. Red pens at the ready…
Simon Ricketts 29.4.17
Personal views, et cetera

(with special thanks to Town colleagues, Spencer Tewis-Allen and Rebecca Craig). 

Heffalump Traps: The Ashdown Forest Cases

The Ashdown Forest in East Sussex is unique. Lindblom LJ recently described it as follows:
“Ashdown Forest contains one of the largest continuous blocks of lowland heath in south-east England. The [Special Area of Conservation] which extends to about 2,700 hectares, comprises both Northern Atlantic wet heaths with Erica tetralix and European dry heaths. It is a “European site” under regulation 8 of the Habitats regulations. The [Special Protection Area] was designated mainly for the protection of two species of bird: the Nightjar and the Dartford Warbler, both included in Annex 1 of EU Directive 79/409/EEC on the conservation of wild birds, as amended. Ashdown Forest is also designated a Site of Special Scientific Interest (“SSSI”), for its heaths, birds, invertebrates, reptiles and amphibians, including the Great Crested Newt.”

The Ashdown Forest was of course also the inspiration for A.A. Milne’s Winnie the Pooh:

“Anyone who has read the stories knows the forest and doesn’t need me to describe it. Pooh’s Forest and Ashdown Forest are identical.” (Christopher Milne)


This honeypot is particularly vulnerable to the indirect effects arising from development in two respects:

– nitrogen deposition caused by motor vehicles

– impacts from recreational use of the forest
It can be particularly difficult to model the levels at which those effects are likely to arise. Any standardised thresholds are bound to be simplistic and to err either on the side of unnecessary restriction of development or on the side of risking significant harm to the forest. But we can’t embark on a huge multi-disciplinary research project every time any change is proposed – and, even then, will the results be accurate?

Whether we are in or out of the EU, I assume that we all accept that there are some particularly special places such as Ashdown Forest that require longterm protection due their nature conservation value and which can be harmed in a number of ways by the incremental effects (direct and indirect) of development? Equally, I’m sure we all recognise that a balance has to be struck in the level of survey work and assessment that local planning authorities and developers should do to determine whether development will acceptable?

It would never be easy to construct a legal regime that provides a fair and efficient process for determining what survey work and assessment is required and where the dividing line is between what is acceptable and unacceptable. As both a Special Area of Conservation and Special Protection Area, the Ashdown Forest is protected under the EU’s Habitats and Birds Directive, transposed in England and Wales by the Conservation of Habitats and Species Regulations 2010.
In basic summary, if it cannot be proven, beyond reasonable scientific doubt, that there will be no significant effect on the site either alone or in combination with other plans or projects, “appropriate assessment” is required, namely consideration of the impacts on the integrity of the European site, either alone on in combination with other plans and projects, with regard to the site’s structure and function and its conservation objectives. If the assessment determines that there will be adverse impacts which cannot be mitigated or avoided by alternative solutions, the plan or project can only proceed in extremely limited circumstances. Appropriate assessment can be a significant undertaking. Relevant for what follows, policy makers have come up with a pragmatic mechanism of requiring contributions by developers to Suitable Alternative Natural Greenspace (“SANGs”) to provide for areas to come forward that will take recreational pressure away from protected sites as a standardised form of mitigation, often thereby avoiding the need for individual, development by development, appropriate assessment. 
Additional levels of protection, not just relevant to European designated sites, are provided by the Strategic Environmental Assessment Directive (in relation to the formulation of plans or programmes whose policies may give rise to significant environmental effects) and by the Environmental Impact Assessment Directive (in relation to certain categories of development projects which may give rise to significant environmental effects). Each has a screening stage, by which the need for detailed assessment work can be avoided if it can be shown that significant environmental effects are unlikely to arise. 
The Great Repeal Bill will operate post Brexit so as to continue to give legal effect in the UK to all of these regimes until such time as Parliament reviews each of them. The Government published on 30 March its White Paper, Legislating for the United Kingdom’s withdrawal from the United Kingdom. It contains this details-free passage on environmental protection:
“The Government is committed to ensuring that we become the first generation to leave the environment in a better state than we found it. 

The UK’s current legislative framework at national, EU and international level has delivered tangible environmental benefits, such as cleaner rivers and reductions in emissions of sulphur dioxide and ozone depleting substances emissions. Many existing environmental laws also enshrine standards that affect the trade in products and substances across different markets, within the EU as well as internationally. 

The Great Repeal Bill will ensure that the whole body of existing EU environmental
 law continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity,
over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny. ”
That may sound benign, but let’s keep an eye on that reference to ensuring “our legislative framework is outcome driven”. “Too much red tape’ appears to be the knee jerk reaction of many politicians to EU environmental legislation, viz recent jabs at protected species such as the great crested newt and at SANGs.
So have we got the balance right in our current legislation? Ashdown Forest has in the last two years given us four court rulings (three at Court of Appeal level) which in different ways identify the difficulties and complexities that inevitably arise in practice. If the sensitivity of a site such as the Ashdown Forest is a given, how would any other system better regulate the competing interests at play and provide an effective regime for determining forensically what are often complex and difficult environmental and ecological scientific issues?
Chronologically (if we ignore famous proceedings that ran from 1876 to 1882 as to the extent of commoners’ rights over the forest versus the rights of a landowner, the 7th Earl De La Warr), the cases have been as follows:

Ashdown Forest Economic Development LLP v Wealden District Council and South Downs National Park Authority (Court of Appeal, 9 July 2015)

This was a challenge by local landowners, including in fact the 11th Earl De La Warr, to policies in the Wealden Local Plan, including a requirement for SANGs provision in relation to housing developments within 7 kilometres of the forest. The Court of Appeal quashed the requirement, holding “with a degree of reluctance” that the council and the national park authority had failed to consider reasonable alternatives to the 7 kilometres cordon, in breach of the requirements of the Strategic Environmental Assessment Directive, overturning Sales J’s first instance ruling.  
Sales J had also rejected the landowners’ challenge to a cap on housing numbers in the plan, which had been justified on the basis of seeking to ensure that traffic movements did not increase beyond 1,000 AADT (annual average daily traffic flows on any road in the forest, equivalent to a 1% increase), treated by the authorities and Natural England as a threshold beyond which appropriate assessment would be required under the Habitats Regulations. The landowners were not given permission to appeal that ground and so that housing numbers policy stands. 
Secretary of State v Wealdon District Council (Court of Appeal, 31 January 2017)
This was a challenge by Wealden District Council to an inspector’s decision to allow an appeal against the refusal of planning permission for the construction of 103 dwellings, 42 of them to be provided as affordable housing, and the provision of 10 hectares of SANGs and public open space, on land at Steel Cross, a small settlement to the north of Crowborough. The site is about 2.4 km from the edge of the forest. The inspector had found that there would have been a need for appropriate assessment despite the 1,000 AADT threshold not having been reached, but for proposed mitigation in the form of financial contributions towards heathland management. The challenge had succeeded at first instance before Lang J and the Court of Appeal had to address a number of submissions from the opposing parties based on SAC and SPA issues:
– did the inspector adopt too strict an approach in concluding that there was no need for an appropriate assessment? 
– was he wrong to assume that heathland management to mitigate the effects of nitrogen deposition would be carried out under a strategic access management and monitoring strategy (“SAMMS”)? 

– did he fail to take into account evidence given for the council on the efficacy of heathland management?

The Court of Appeal held that the inspector’s approach to the potential relevance of even relatively small additional traffic numbers had not been wrong but he had failed to justify why, in the face of contrary evidence from the council, he considered that heathland management would amount to adequate mitigation. Furthermore:
“As Mr Price Lewis submitted, the inspector did not explain how he thought the financial contributions in the section 106 obligation were in fact going to be translated into practical measures to prevent or overcome the possible effects of nitrogen deposition to which he had referred, as well as funding the SAMMS projects which would tackle the potential effects of recreational use. He did not say what he thought was actually going to be done, by whom, and when, in implementing the “habitat management” upon which his conclusion on the need for “appropriate assessment” was predicated. That conclusion depended on his judgment that, with mitigation, including heathland management to mitigate the effects of nitrogen deposition, the proposed development, together with other proposals, was not likely to have significant effects on the European site. Such mitigation, as he made clear, was essential to his “precautionary approach”. So if there was any real doubt about the requisite heathland management coming forward, his conclusion that an “appropriate assessment” was not required would, to that extent, be undermined. It was necessary for him to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered. But he did not do that. He did not identify a solid proposal for heathland management, relevant to this proposed development, to which there was a firm commitment on the part of those who were going to carry it out. His conclusions in paragraphs 68 and 71 of his decision letter, and in paragraph 105, clearly depended on the concept that the “contributions to SAMMS” in the section 106 obligation “would” – as he put it – actually be used, in part, to fund “projects” of “habitat management”. These projects would involve measures, such as cutting and grazing to reduce, “offset” or “outweigh” the effects of nitrogen deposition attributable to this development in combination with other proposals, including “additional eutrophication”. But which “projects” he had in mind is obscure.”
The planning permission was quashed. 
R (DLA Delivery Ltd) v Lewes District Council (Court of Appeal, 10 February 2017)  
This case raises a number of issues in relation to neighbourhood planning (see my 19.2.17 blog post, Five Problems With Neighbourhood Plans ) but for the purposes of this blog post the relevant question before the Court of Appeal was whether the neighbourhood plan for Newick, approximately 7 km from the forest, contravened the Strategic Environmental Assessment Directive in that the need for strategic environmental assessment had been screened out, relying on on the emerging sustainability appraisal work carried out by Lewes District Council and the national park authority. The claim had been brought by a promoter of a scheme which had not been allocated for development in the plan. If SEA had been found to be required, this would have given it the opportunity to promote its site as a reasonable alternative for those allocated, given that it was outside the magic 7 km radius of the forest. Whilst the court found errors in the council’s reasoning for arriving at a negative screening opinion, they were not such as to vitiate the decision and the plan was not quashed. 
Wealden District Council v Secretary of State, Lewes District Council and South Downs National Park Authority  (Jay J, 20 March 2017)
The forest lies within Wealden’s and the national park authority’s respective administrative areas. Lewes District Council’s boundary is around 5-6km from the forest. This was a challenge by Wealden District Council of a joint core strategy prepared by Lewes and the national park authority. Wealden claimed that Lewes and the national park authority had acted unlawfully in concluding, on advice from Natural England, that the joint core strategy would not be likely to have a significant effect on the SAC in combination with the Wealden core strategy. 
Natural England had advised that if the expected increase in AADT flows on any route within 200m of a protected site was less than 1,000 cars per day or 200 HGVs per day, equivalent to less than a 1% increase in traffic, then appropriate assessment was not necessary. The expected increase turned out to be 190 AADT, but the expected increase of 950 generated by proposals in the Wealden core strategy was ignored. The defendants tried to argue before the court that the 1,000 AADT threshold was “sufficiently robust and precautionary to cover any likely scenario of in-combination effects. The amounts of nitrogen dioxide in play are so small that they are effectively de minimis and of neutral effect”. 
The judge held that Natural England’s approach was “plainly erroneous”. There was “no sensible or logical basis” for excluding the Wealden core strategy from account” and a “clear breach” of the Habitats Directive. 
A couple of additional points to note:
– The challenge was to policies in the joint core strategy, but (unlike the national park authority) Lewes had adopted it more than six weeks before the challenge had been brought. Accordingly only the policies relating to the provision of new housing in the national park authority’s area were quashed. 
– In an extreme case of nominative determinism, Natural England’s expert advisor, as in a number of these cases, was one Marion Ashdown. 

Controversy relating to Ashdown Forest is likely to continue if a recent Daily Mirror piece  on the Mid-Sussex local plan inspector’s 20 February 2017 preliminary conclusions on housing requirements is anything to go by…
So what do we conclude from all of this?
Even once we agree that complex eco-systems such as Ashdown Forest need protection, the dividing line between an appropriate precautionary approach to house-building in the vicinity and inappropriate over-protection is really hard to draw, and it is equally difficult to apply triage so as to reduce the amount of detailed assessment work required. 
The necessary predictions draw upon scientific disciplines such as chemistry, statistics, ecology and psychology as much as they are about planning or law. 
Perhaps there is room for greater clarity. After all, it is concerning when even the Government’s statutory advisory body can be “plainly erroneous” in its approach. And it is concerning that so many complex cases are reaching the courts – and leading to the quashing of decisions and policies. This hardly gives a certain basis for house building. 
But don’t think that this is ever going to be easy or that the problems mainly lie with the nature of the EU directives from which the legal principles flow. We will reinvent the wheel at our peril. 

After all that, perhaps there is one thing on which we can all agree?

It is more fun to talk with someone who doesn’t use long, difficult words but rather short, easy words like “What about lunch?” (A.A. Milne)

Simon Ricketts 8.4.17
Personal views, et cetera