Environmental assessment and 'discretionary' projects

The Court of Appeal has recently reviewed the principles to be applied where a planning authority decides that a proposed project does not require environmental assessment. Resisting arguments that case law of the European Court of Justice called for a more intensive review of the issue by the courts, it ruled that the decision was essentially a matter of judgment by the planning authority, subject only to review by the courts on standard grounds that no reasonable authority could have come to such a decision.

R on the application of Jones v Mansfield District Council (Court of Appeal [2003] EWCA Civ 1408, 23 September 2003) concerned an application for outline planning permission for the development of a 28 hectare plot of farmland as an industrial site.

It was accepted that the proposed development fell within one of the "discretionary" project classes in the EU Directive on environmental assessment and national implementing regulations. Projects falling within any of these classes must be subject to assessment where they are "likely to have significant effects on the environment".

The national regulations which implemented the Directive in relation to projects requiring planning permission essentially oblige the planning authority in the first instance to determine the question of likely significant effects, although there is no provision in the regulations to that effect.

The Secretary of State is given the power to give a definitive direction that in his opinion the proposal is likely or not likely to have significant effects, and before submitting a planning application the developer may also seek a prior opinion from the local authority as to whether the proposal will require an environmental assessment. Neither of these provisions was invoked in the present case.

The local authority considered the question of likely significant effects. There were no designated conservation sites in the area, but there was evidence that the proposal might have an impact on bats and on the habitat of birds in the area, in particular golden plover.

On this latter issue, English Nature was consulted, and said it was "far from clear" that the proposal would have a measurable impact on the current bird population within the wider area available to the species in the county.

The local authority concluded that no significant environmental impact was likely and that no environmental assessment was therefore required. It subsequently granted outline planning permission.

That decision was challenged in the courts by a local resident on the grounds that the application should have been subject to environmental assessment.

Earlier this year, the High Court held that the local authority's decision was reasonable and dismissed the application for judicial review, and the applicant was granted leave to appeal to the Court of Appeal.

During the course of arguments before the Court of Appeal, it was suggested by one of the judges that the question of whether a project was likely to have significant environmental effects might be a question of primary fact for determination by the court, rather than leaving it to the discretion of the planning authority, subject only to traditional grounds of legal review based on so called "Wednesbury principles" of unreasonableness.

Not surprisingly, the applicant seized on the suggestion, and the Court of Appeal admitted that it was unfortunate that the issue was not subject to detailed argument before the court.

In the Berkeley case in 2001, the House of Lords had indicated that in relation to the power of the Secretary of State to issue directions concerning likely significant environmental effects, this was subject to judicial review where no reasonable Secretary of State could have come to such a conclusion.

The role of the courts in relation to a local authority making that decision was not dealt with directly in Berkeley, but the Court of Appeal felt that it would be very surprising if a court's reviewing function was different where the decision of the local authority rather than the Secretary of State was an issue.

According to Lord Justice Dyson, who gave the lead judgment, "Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgement or opinion. It is not a question of hard fact to which there can only be one possible correct answer in any given case." He concluded that the role of the court in reviewing such a decision should be limited to Wednesbury review grounds.

As to the correct approach to be taken by the local authority in making its judgment, the applicant argued that where there were any uncertainties about the environmental effects of a development, it cannot be said that that it would be unlikely to have significant environmental effects and therefore should be subject to environmental assessment.

The approach underlined what is in some respects an inherent contradiction at the heart of the Directive in relation to discretionary projects. Without undertaking an environmental assessment, how can an authority judge whether likely significant effects are involved?

The court considered a number of judgements of the European Court of Justice relating to the Directive and discretionary projects. However, as it noted correctly, these cases dealt essentially with whether the Directive gave sufficient discretion to a Member State to exclude in advance whole classes of projects or a specific project from assessment as not likely to have significant effects. Though it rejected such "blanket" approaches, the ECJ did not deal directly with the principles governing the exercise of the discretion, other than that it should be exercised.

The Court of Appeal concluded that whether or not a project was likely to have significant effects was a question of degree calling for exercise of judgment. It adopted the approach of the High Court which rejected any overriding principle that unless an authority was confident of there being no likely significant effects it must require an environmental assessment, and that any uncertainty must be resolved in favour of an assessment.

It was only "significant" effects that came in to play, and any minor environmental effects would be potential material considerations in considering the planning application.

The principles, according to Mr Justice Richards in the High Court and endorsed by the Court of Appeal, were that the planning authority "must make an informed judgement on the basis of the information available to it and having regard to any gaps in that information and to any uncertainties that may exist, as to the likelihood of significant effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends on the circumstances of the individual case."

Reviewing the actual facts of the case, the Court of Appeal agreed with the High Court that the planning authority had come to a reasonable conclusion on the basis of the evidence before it.

Earlier this year, the Court of Appeal held in the Gillespie case that authorities should not over-rely on the effect of mitigating measures imposed as part of the planning permission to assume that no significant effects were likely (ENDS Report 339 pp 55-56 ).

In the present case, the developer had formally undertaken to carry out further ecological surveys, and various conditions concerning nature conservation were imposed. But the Court of Appeal rejected the applicant's argument that the planning authority had relied upon the undertaking and conditions in its determination about significant effects. The comments of English Nature were important, and according to the court it was reasonable for the planning authority to decide that the development was unlikely to have significant effects in relation to birds and bats.

The decision emphasises the large degree of discretion which planning authorities enjoy in relation to discretionary projects. Once a proposed project falls within one of the discretionary classes - and this question probably is one of law and fact reviewable by the courts - the authority must address the question of likely significant effects. But the judgement is essentially one for it to make, not the courts.

The Court of Appeal rejected an overly legalistic approach towards interpreting the requirements, and was wary of it being used as technical grounds by third parties seeking to prevent the development. Lord Justice Carnwath in particular was concerned at the protracted procedures involved in the case, and noted: "It needs to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle race."

No doubt this will not be the last judicial review concerning the environmental assessment requirements, but the courts are hinting strongly that they do not wish to usurp roles best suited to others bodies in the planning process.

Richard Macrory, Professor of Environmental Law, University College, London

Richard Macrory is a board member of the Agency but the views expressed here are personal

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