Update: environment

EIA screening opinions

In Mageean v Secretary of State for Communities and Local Government and Renfree (C1/2010/2661), the Court of Appeal considered the question of when an inspector hearing an appeal of a planning decision should refer the proposed development to the secretary of state for a reconsideration of a negative EIA screening opinion.

The case involved an application to build a wind turbine in Cornwall, on a site proximate to part of the Cornwall and West Devon mining landscape world heritage site. HHJ Robinson, sitting in the High Court, quashed the decision taken on behalf of the secretary of state by the inspector on the single ground that the inspector had failed to consider whether a screening direction issued by the secretary of state in 2003 that the proposed development was not EIA development for the purpose of the regulations should have been referred back by the inspector to the secretary of state for reconsideration because there had been a material change in the circumstances since the screening direction was issued, namely the inscription in 2006 of the world heritage site.

In the earlier case of Evans v First Secretary of State [2003] EWCA Civ 1523, Simon Brown LJ said obiter that, although there is clearly no duty on an inspector to refer a development to the secretary of state for reconsideration of the screening opinion, it was open to an inspector to do so if, in the course of his or her inquiry, it became apparent that 'some important misapprehension' of the situation or 'material facts came to light' which may realistically lead the secretary of state to a different conclusion. However, this should only happen rarely and a failure to reconsider would only be challengeable if it could be characterised as irrational. Simon Brown LJ further stated that if no one asked the inspector to consider referring the screening decision, it would be difficult to characterise a failure to do so as irrational.

In Mageean, Sullivan LJ affirmed Evans, holding that the planning judgment of the inspector that the development would not have an unacceptable impact on the WHS would have informed any view of the likelihood of the secretary of state reconsidering the screening opinion. Given the inspector concluded the development was acceptable in planning terms, any failure on her part to consider referring the development to the secretary of state in the context of screening could not be categorised as irrational.

Although this case may seem to turn on a narrow point, it has larger implications. The court both in Evans and in the present case emphasised that the inspector's failure to consider referring was of less significance if 'no one had asked' him or her to reconsider the screening opinion. It could be said that this places a highly procedural burden on laypersons objecting to a proposed development, who would most likely (unless very closely advised) be unaware of the significance of a screening opinion. The court's decision also appears to ignore the fact that the internal guidance of the planning inspectorate requires inspectors to consider whether a screening opinion is adequate in every case, and, on the facts, this inspector wholly failed to do so, having left blank the relevant checklists.

But a larger issue raised by the case is whether restricting a challenge purely on rationality grounds, although the norm in English administrative law, risks subverting the EU law underpinning the system to protect the environment. In the court's formulation, an inspector could entirely fail to consider the screening opinion, which is acknowledged to be inadequate in itself or inaccurate if there has been a material change of circumstances, yet on the basis of his or her planning judgment that the overall impact of the development would be acceptable, grant planning permission. Consent is therefore given for EIA development without proper screening and potentially an environmental statement. As this case illustrates, the question of whether a decision was rational in Wednesbury terms does not sit easily with the question as to whether the directive has been complied with to a satisfactory extent.

In administrative law challenges based on rights under the ECHR, proportionality has gradually come to influence the rationality test, largely because of the Strasbourg court's insistence that rationality alone does not provide sufficient protection for those rights. Perhaps in time a similar pressure from Luxembourg will alter the reliance on rationality in cases involving environmental protection.

Nuisance

In Barr v Biffa Waste Services Ltd [2011] EWHC 1003, Coulson J delivered an important judgment on a claim in odour nuisance, which had been brought by a number of claimants on a group litigation order. The claimants lived near a landfill site and alleged nuisance from the 'pre-treated' waste on site. The judge focused his examination on the question of whether the defendant's use of site was reasonable, rather than whether the alleged interference in the claimants' amenity was unreasonable. The judge laid down a new principle that, in the absence of negligence or breach of its permit, the defendant waste operator should not be liable in nuisance for the inevitable consequences of its activities. There was no reason why a 'best practicable means' defence should not function in common law claims as it does in statutory nuisance.

Although the judge held that the defendant succeeded in its defence, he stated that, if the defendant had been liable, there would have been a need to establish an 'odour nuisance threshold' of one 'complaint day' per week, on the basis that odour is otherwise a highly subjective phenomenon and cannot be measured objectively in the same way as noise or dust. If that threshold had been exceeded, the defendant would have been liable in general damages, assessed at £1,000 per household for each year the threshold was exceeded.

The claimants have applied for permission to appeal; if permission is granted the appeal will no doubt generate even greater interest for practitioners.

Promptness in judicial review

In R (U & Partners (East Anglia) Ltd) v Broads Authority & Environment Agency [2011] EWHC 1824 Admin, Collins J declared the promptness requirement for judicial review challenges relying on EU law to be unlawful. Since Uniplex was handed down last year, in which the ECJ held that the promptness requirement in public procurement claims was contrary to the principle of legal effectiveness, there has been some disagreement in the courts as to that case's influence.

In U & Partners, the judge clearly held that where a breach of the directive was argued and the claim was brought within three months of the decision, promptness could not be used to refuse judicial review or to refuse to grant relief under section 31(6) of the Senior Courts Act 1981.

However, the judge declined to extend Uniplex to all cases involving EIA development but where the challenge is made on grounds not based on breaches of the directive. The judge also suggested that CPR 54.5 should be amended to allow only six weeks for bringing judicial review claims to planning decisions, so as to be the same for appeals against decisions of a planning inspector or the secretary of state.

Most practitioners, either on behalf of claimants or defendants, should welcome this decision as it brings clarity to proceedings and should save effort which has until now been spent arguing points on delay and redirect it to the substantive issues. However, the judge's suggestion that six weeks should apply in judicial review claims ignores two major points of difference with appeals '“ the first being that in judicial review time must be spent in pre-action correspondence. The second is that in a planning appeal the parties involved have already argued in depth the issues raised by the development. The points of law to be examined in an appeal are necessarily much more focused from the outset than in judicial review.

The 'Beesley exception'

In Welwyn Hatfield Council v SSCLG & Beesley [2011] UKSC 15, the Supreme Court considered the impact of fraud on the granting of a lawful development certificate.

Mr Beesley obtained planning permission to build a barn. He built a dwellinghouse instead, although to the casual observer it appeared to be a barn. After four years had elapsed he applied for a certificate of lawful development on the ground of a change of use to a dwellinghouse '“ the inspector granted the certificate, which was upheld by the Court of Appeal on the plain reading of the statutory provisions which did not provide for any exceptions in the case of positive deception.

The Supreme Court disagreed, holding that the statutory provisions were not intended to cover situations of outright fraud intended to avoid planning control. The 'Beesley exception' applies where there is objective evidence of 'positive and deliberately misleading false statements by the owner successfully preventing discovery' and the planning authority is therefore entitled to refuse to grant a certificate of lawful development. This seems to be a sensible extension of the law to allow local planning authorities to take action where there is solid evidence of deception.

Demolition now 'development'

Finally, in the last environment update (Solicitors Journal 155/10, 14 March 2011), I mentioned case C-50/09 Commission v Ireland, in which the ECJ ruled that demolition came within the scope of the EIA directive. In R (SAVE Britain's Heritage) v (1) SSCLG; (2) Lancaster City Council & (3) Mitchells of Lancaster (Brewers) Ltd [2011] EWCA Civ 334 the Court of Appeal brought domestic law in line, ruling that the EIA directive must be given a 'purposive' interpretation. The 1995 demolition direction excluded most forms of demolition (in particular, of listed buildings, scheduled monuments and any building in a conservation area) from the definition of 'development'. As the EIA regulations only apply to 'development', the secretary of state had argued for many years that EIA was not necessary simply to carry out the demolition of buildings falling into these categories (albeit there are other controls on these demolitions).

The paradoxical effect of this approach, as the court noted, was that buildings which were among the most likely to have an impact on cultural heritage should they be demolished were excluded from the ambit of the directive.

The effect of the court's ruling is that much of the demolition directive is unlawful and the chief planner has written to all chief planning officers accordingly.