R (oao Loader) v Secretary of State for Communities & Local Government

Transcript date:

Thursday, July 28, 2011

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

HHJ Lloyd Jones

Transcript file:

Neutral Citation Number: [2011] EWHC 2010 (Admin)
Case No: CO/11064/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28 July 2011
Before :
THE HON. MR. JUSTICE LLOYD JONES
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Between :
Anne Marie Loader Claimant
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Secretary of State for Communities and Local Government Defendant

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James Pereira (instructed by Richard Buxton Solicitors) for the Claimant
James Maurici (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 27th May 2011
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Judgment

The Hon. Mr. Justice Lloyd Jones :

1. The Claimant, who lives and works in Bexhill on Sea, seeks judicial review of a screening direction by the Secretary of State for Communities and Local Government ("the Secretary of State") made under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 ("the EIA Regulations"). The screening direction related to the proposed re-development of a site at Gulliver's Bowls Club, Knole Road, Bexhill on Sea to form 41 sheltered apartments for the elderly, car parking, landscape and access and a new outdoor bowls green, indoor rink, club facilities and car parking. The Secretary of State's delegate, the Planning Inspectorate ("PINS"), determined that the proposed development, which was the subject of an appeal against the refusal of planning permission by the First Interested Party, Rother District Council ("the Council"), was not likely to have significant effects on the environment and thus did not need to be accompanied by an Environmental Impact Assessment ("EIA").

2. The screening direction was contained in a letter dated 7th July 2009 which was subsequently affirmed in a further letter of 24th September 2009. It is common ground between the parties that a number of other documents evidence the reasoning for that direction, including a check list annexed to a letter from PINS dated 7th October 2009.

3. The history of the matter can be summarized as follows. By an application dated 2nd August 2006 and received on 23rd August 2006 the Second Interested Party, Churchill Retirement Living Limited, ("the Developer") made an application to the Council for the re-development of the former bowls club at Knole Road. By decision notice dated 12th October 2006 the Council refused the application. An appeal was lodged and subsequently allowed. However the inspector's decision letter was quashed by consent of the parties on 10th June 2008 because the Defendant had failed to consider whether the proposal was a Schedule 2 application within the 1999 Regulations before granting planning permission.

4. On 7th July 2009 the Defendant made a negative screening direction i.e. the Defendant determined that the development did not require an Environmental Impact Assessment. On 28th July 2009 the Claimant's solicitor wrote to the Defendant asking for detailed reasons for the screening decision. By letter dated 4th August 2009 the Defendant provided reasons for his decision. These reasons were challenged by the Claimant's solicitors by letter dated 13th August 2009. By letter dated 26th August 2009 the Defendant reaffirmed its earlier decision. In a response dated 3rd September 2009 the Claimant's solicitors made further representations in support of the view that an EIA was required. On 9th September 2009 the Developer's representatives ("Planning Issues") made lengthy representations on why an EIA was not required and expressly requested that the Defendant reconsider his screening decision taking into account these further representations. By letter dated 11th September 2009 the Claimant's solicitors responded to the Defendant making further representations.

5. By letter dated 24th September 2009 the Defendant wrote to the Claimant's solicitors confirming that he had reviewed his decision but remained of the view that an EIA was not required for the reasons previously given. By letter dated 28th September 2009 the Developer wrote to the Defendant raising its concern that a challenge was possible unless the Defendant clearly demonstrated how his decision had been reached. A pre-action protocol letter was sent by the Claimant's solicitors on 30th September 2009. By letter dated 5th October 2009 Planning Issues formally requested that the Defendant issue his reasoning on how he exercised his judgement when issuing the EIA Screening Decision issued on 7th July. By letter dated 7th October 2009 the Defendant responded to the pre-action protocol letter and enclosed a copy of a screening checklist completed on behalf of the Secretary of State and dated 12th September 2009. The letter explained that the checklist, which was in the format approved by the EU Commission, had been completed by an officer acting on behalf of the Secretary of State in reaching the conclusion published in the Defendant's letter of 24th September 2009.

6. The application for permission to apply for judicial review was issued on 7th October 2009. In the course of a convoluted procedural history the Claimant obtained permission to apply for judicial review on the following grounds:

(1) The Secretary of State in making the screening direction misdirected himself as to the meaning of "significant effects on the environment" in Article 2(1), Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC).

(2) The Secretary of State's reasons for the screening direction were defective in relation to the possible impact of removal of asbestos and mitigation measures.
Legislative context

7. Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment states in the preamble that the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects. Accordingly it affirms the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision making processes. Its purpose is to provide for the implementation of procedures to evaluate such effects. The preamble further states:

"Whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent to procedures governing public and private projects likely to have a major effect on the environment;...
Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out;...

...

Whereas projects belonging to certain types have significant effects on the environment these projects must as a rule be subject to systematic assessment;

Whereas projects of other types may not have significant effects on the environment in every case and whereas these projects should be assessed where the Member States consider that their characteristics so require..."

8. The distinction between these two categories of projects is reflected in the body of the Directive ("the EIA Directive").

Article 2(1) provides:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to the requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4."

Article 4 provides in relevant part:

"1. Subject to Article 2(3), projects listed in Annex 1 shall be made subject to an assessment in accordance with article 5 to 10.

2. Subject to Article 2(3), for projects listed in Annex II, the Member State shall determine through:

(a) A case-by-case examination, or

(b) Thresholds or criteria set by the Member State,
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

Member States may decide to apply both procedures to in (a) and (b).

3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken in to account.
..."

Accordingly projects listed in Annex I always require an assessment ("EIA"), Member States have under Article 4 a measure of discretion to decide which projects listed in Annex II require an EIA.

9. Projects set in Annex II include under heading 10 "Infrastructure projects". Category 10(b) is defined as follows:

"Urban development projects, including the construction of shopping centres and car parks."

10. The EIA Directive is implemented by the EIA Regulations. The scheme of the EIA Regulations is very similar to that of the EIA Directive. It distinguishes between different categories of development. Regulation 2 provides:

""EIA Development" means development which is either-

(a) Schedule 1: or

(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location..."

11. Schedule 1 is in identical terms to Annex I of the EIA Directive. Planning applications for projects falling within the description in Schedule 1 of the EIA Regulations may not be approved unless they have been subject to EIA.

12. Schedule 2 development is defined by Regulation 2(1) as follows:

""Schedule 2 development" means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where-

(a) any part of that development is to be carried out in a sensitive area; or

(b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development;"

The table in Schedule 2 comprises two columns. Column 1 contains a description of development and Column 2 the threshold or other criteria applicable to that type of development. Column 1 replicates Schedule II of the EIA Directive.

Entry 10 in Column 1 is infrastructure projects and item 10(b) is concerned with "Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas;" The corresponding thresholds and criteria stated in Column 2 are "The area of the development exceeds 0.5 hectare."

13. The present case is concerned with determinations whether EIA is required. Such determinations are made by local planning authorities as "screening opinions" and by the Secretary of State as "screening directions". A screening opinion is defined in Regulation 2(1) as:

"A written statement of the opinion of the relevant planning authority as to whether development is EIA development."

A screening direction is defined in Regulation 2(1) as:

"A direction made by the Secretary of State as to whether development is EIA development."

14. A development is determined to be EIA development if the applicant submits an EIA for the purpose of the EIA Regulations or a local planning authority adopts a screening opinion that the development is EIA development (Regulation 4(2)). However by Regulation 4(3) a screening direction by the Secretary of State shall determine whether development is or is not EIA development, over-riding any conclusion reached under Regulation 4(2).

15. By Regulation 4(5) screening decisions must take into account the screening criteria contained in Schedule 3 of the EIA Regulations. Schedule 3 sets out selection criteria under the headings characteristics of development, location of development and characteristics of the potential impact. Schedule 3 of the EIA Regulations replicates Annex III of the EIA Directive.

16. Regulation 4(6) provides that where a screening opinion or a screening direction is adopted to the effect that development is EIA Development

"that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion."

There is no corresponding requirement in the EIA Regulations to give a written statement of reasons for a screening opinion or screening direction to the effect that development is not EIA development. Reasons for such "negative screening decisions" were, however, considered by the ECJ in Case C-75/08 R (Mellor) v Secretary of State for Communities and Local Government [2009] E.C.R. I-3799; [2010] Env. L.R. 2.

Circular 2/99: Environmental Impact Assessments

17. Circular 2/99 on Environmental Impact Assessments gives guidance on screening. With regard to the need for EIA for Schedule 2 development the Circular gives the following guidance:
"General considerations

32. The local planning authority must screen every application for Schedule 2 development in order to determine whether or not EIA is required. This determination is referred to as a 'screening opinion'. In each case, the basic question to be asked is 'Would this particular development be likely to have significant effects on the environment?'. The following paragraphs indicate the considerations which should be taken into account in making that determination.

33. As a starting point, authorities should study Schedule 3 to the Regulations (reproduced at Annex B to this Circular) which sets out the 'selection criteria' which must be taken into account in determining whether a development is likely to have significant effects on the environment. Not all of the criteria will be relevant in every case. It identifies three broad criteria which should be considered: the characteristics of the development (e.g. its size, use of natural resources, quantities of pollution and waste generated); the environmental sensitivity of the location; and the characteristics of the potential impact (e.g. its magnitude and duration). In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:

a. for major developments which are of more than local importance (paragraph 35);

b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and

c. for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42).

34. The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment."

18. The Circular provides with regard to indicative criteria and thresholds:

"43. Given the range of Schedule 2 development, and the importance of location in determining whether significant effects on the environment are likely, it is not possible to formulate criteria or thresholds which will provide a universal test of whether or not EIA is required. The question must be considered on a case-by-case basis. However, it is possible to offer a broad indication of the type or scale of development which is likely to be a candidate for EIA and, conversely, an indication of the sort of development for which EIA is unlikely to be necessary.

44. For each category of Schedule 2 development, Annex A to this Circular lists criteria and/or thresholds which indicate the types of case in which, in the Secretary of State's view, EIA is more likely to be required. Annex A also gives an indication of the types of impact that are most likely to be significant for particular types of development. It should not be presumed that developments falling below these thresholds could never give rise to significant effects, especially where the development is in an environmentally sensitive location. Equally, developments which exceed the thresholds will not in every case require assessment. The fundamental test to be applied in each case is whether that particular type of development and its specific impacts are likely, in that particular location, to result in significant effects on the environment. It follows that the thresholds should only be used in conjunction with the general guidance, and particularly that relating to environmentally sensitive locations (paragraphs 36-40)." (Original emphasis)

19. An Annex to the Circular provides "Indicative thresholds and criteria" for identification of Schedule 2 development requiring EIA. In respect of urban development projects, the category of Schedule 2 development with which this case is concerned, while the threshold for undertaking screening at all in Column 2 of Schedule 2 is 0.5 hectare, the indicative threshold of the Circular for likely significance states:

"A18. In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination (paragraph 41).

A19. Development proposed for sites which have not previously been intensively developed are more likely to require EIA if: 
• the site area of the scheme is more than 5 hectares; or
• it would provide a total of more than 10,000 m2 of new commercial floorspace; or
• the development would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings)."

European Guidance

20. Further guidance is provided by a document published by the European Commission entitled "Guidance on EIA Screening" (June 2001).

21. This document records that there is a variety of different approaches to screening amongst the Member States. All are based upon Annex 1 and 2 lists and Annex 3 criteria but developers, EIA practitioners and competent authorities will need to refer to legislation and guidance in individual Member States to identify the particular requirements which apply.

22. Part A 3.4 continues:

"In each case the vital point to remember is that EIA is required when a project is likely to have significant effects on the environment. The next part of the guidance provides practical advice to participants in the EIA process on how to determine whether this is the case." (original emphasis)

Part B then sets out the practical guidance on screening.

Paragraph B 3.4.1 provides:

"To assist EIA participants in applying the Annex III criteria to case-by-case screening, some useful tools are presented in Section B4 of this document. These are intended to be of assistance where there is no Member State guidance or where the need for EIA is still not clear. They are designed to help answer the question "Is this project likely to have significant effects on the environment?"

It is important to emphasise that use of these tools is not intended to require special studies. The tools are intended to be used quickly by people with the qualifications and experience typically found in competent authorities, and using the information which is readily available about the project and its environment."

23. Section B4 deals with case-by-case screening tools. It explains that Annex III of the Directive sets out the criteria which must be considered in screening. To help EIA participants apply these criteria in case by case screening, the Commission document sets out two checklists "to support and help the process of deciding whether or not a project is likely to have significant effects on the environment." The first is a screening checklist which sets out a list of questions about the project and its environment. The second is a checklist of criteria for evaluating the significance of environmental effects. It continues:

"Again, it is important to emphasise that use of the checklists is not intended to require special studies. They are intended to be used quickly by people with the qualifications and experience typically to be found in competent authorities and using the information which is readily available about the project and its environment. The user should run quickly through the questions and if the answer is "don't know" record this and take it into account as an uncertainty which might point towards a decision that EIA is required."

24. Paragraph B4.2 provides in relation to interpretation of results:

"There is no specific rule that can be used to decide whether the results of using the Screening Checklist should lead to a positive or negative screening decision (i.e. that EIA is or is not required). In theory if there is one "Yes" answer to the question is it likely to result in a significant effect, EIA may be required, however, as a general principle, the greater the number of "Yes" answers and the greater the significance of the effects identified, the more likely it is that EIA is required. "?" answers, indicating uncertainty about the occurrence or significance of effects, should also point towards a positive screening decision (i.e. that EIA is required) because the EIA process will help to clarify the uncertainty."

25. The introduction to the checklist of criteria for evaluating the significance of environmental effects includes the following passage:

"This checklist is designed to help users decide whether EIA is required based on the characteristics of the likely impacts of the project. It is to be used in case-by-case screening in conjunction with the Screening Checklist.
The Screening Checklist provides a list of questions to help identify where there is the potential for interactions between a project and its environment. This checklist is designed to help decide whether those interactions - effects - are likely to be significant.

Those responsible for making screening decisions often find difficulties in defining what is "significant". A useful simple check is to ask whether the effect is one that ought to be considered and to have an influence on the development consent decision. At the early stage of Screening there is likely to be little information on which to base this decision but the following list of questions may be helpful.

These questions can be asked for each "Yes" answer in the Screening Checklist and the conclusion and the reasons for it noted in the checklist. The questions are designed so that a "Yes" answer will generally point towards the need for EIA and a "No" answer to EIA not being required.

Questions to be Considered

1. Will there be a large change in environmental conditions?
2. Will new features be out-of-scale with the existing environment?
3. Will the effect be unusual in the area or particularly complex?
4. Will the effect extend over a large area?
5. Will there be any potential for transfrontier impact?
6. Will many people be affected?
7. Will many receptors of other types (fauna and flora, businesses, facilities) be affected?
8. Will valuable or scarce features or resources be affected?
9. Is there a risk that environmental standards will be breached?
10. Is there a risk that protected sites, areas, features will be affected?
11. Is there a high probability of the effect occurring?
12. Will the effect continue for a long time?
13. Will the effect be permanent rather than temporary?
14. Will the impact be continuous rather than intermittent?
15. If it is intermittent will it be frequent rather than rare?
16. Will the impact be irreversible?
17. Will it be difficult to avoid, or reduce or repair or compensate for the effect?"

Ground 1: The Secretary of State in making the screening decision misdirected himself as to the meaning of "significant effects on the environment" in Article 2(1), Council Directive of 27th June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC).

26. On behalf of the Claimant Mr. Pereira submits that a likely significant environmental effect within the meaning of Article 2(1) of the Directive is "an environmental effect which has a real possibility ("likely") of influencing the outcome of the application for development consent ("significant")." The Claimant submits that the appropriate test is set out in the Commission Guidance, namely whether any effect:

"...is one that is of sufficient importance that it ought to be considered and have an influence on the development consent decision."

The Claimant contends that the Secretary of State has failed to apply the correct test and has accordingly wrongly concluded that the proposal is not EIA development.

27. Mr Pereira submits that the meaning of "significant" is of central importance to the functioning of the Directive because the threshold question in Article 2(1), i.e. whether the development is likely to have significant environmental effects, determines in most cases whether the Directive applies or does not apply to a particular development. While accepting that "significant" can bear a range of meanings, he submits that the dictionary definitions are fairly consistent. He points in particular to "important enough to merit attention" (Concise OED 10th Ed. 2002); "important, worth noting or considering" (Chambers 21st Century Dictionary); "important, notable" (OED, 2nd Ed.).

28. Mr Pereira submits that the Directive creates a procedure for assessing environmental effects which operates in the context of applications for development consent. The environmental information gathered by these procedures must be taken into account before development consent is granted. Therefore, the context for deciding whether an environmental effect is worth noting or important enough to merit attention is the development consent process. His submission is therefore that, seen in this proper context and giving effect to the natural meaning of the word, a significant environmental effect is an environmental effect which is important enough to influence the outcome of the development consent process.

29. On behalf of the Defendant Mr Maurici makes the following submissions. First, he submits that the Claimant's argument rests on reading out of context an isolated sentence in a non-binding guidance document which, in any event, recognises that the assessment of significance is a fact-sensitive matter of judgment for the expert planning decision-maker. Secondly he submits that the argument is contrary to authority. Thirdly, he submits that the argument is contrary to the legislative scheme of the EIA Directive. In particular, it wrongly transfers the focus from a likely significant effect on the environment to an effect which it is relevant to consider and which might influence the development consent decision. Fourthly, he submits that the court should not seek to lay down definitive guidance on the meaning of the phrase "significant effects on the environment".

30. At the hearing before me the parties were in agreement that Ground 1 turns on this point of interpretation. It is not contended on behalf of the Claimant that the screening decision was Wednesbury unreasonable. Furthermore, the Defendant accepts that the approach that he took was not the one contended for by the Claimant and that if the wrong test was applied the decision would have to be quashed.

31. Mr Pereira submits that "significant" must be interpreted in the broad manner for which he contends in order to give effect to the Directive's very wide scope and purpose. He points to certain decisions of the Court of Justice of the European Union and the judgment of Sullivan L.J. in R (Save Britain's Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ. 334 as supporting this broad approach. He submits that, in each instance, matters of imprecision arising in the context of the decision are addressed by taking a broad and purposive approach which resolves the imprecision in favour of including development within the Directive rather than excluding it.

32. However I consider that the authorities on which he relies do not support his suggested approach to the meaning of "significant" in the Directive. In Case C-72/95 Kraaijeveld v Gedeputeerde Staten Van Zuid-Holland [1996] E.C.R. I-5403 the Court of Justice stated (at paragraph 31) that the wording of the Directive indicated that it had a wide scope and broad purpose and that that should be applied in its interpretation. However that case was concerned with the question whether point 10(e) Annex II to the Directive which referred to "canalization and flood-relief works" encompassed dyke works. The Court adopted a purposive approach in concluding that it clearly did. Similarly in Case C-142/07 Ecologistas en Accion-CODA v Ayuntamiento de Madrid [2008] the Court of Justice was concerned with an argument that a ring road was an urban road and was therefore not included in the types of road listed in Annexes I and II to the Directive. In rejecting that argument the Court stated that the scope of the Directive was very wide and that it would, therefore, be contrary to the purpose of the Directive to allow any urban road project to fall outside its scope solely on the ground that the Directive does not expressly mention among the projects listed in Annexes I and II those concerning that kind of road (at para 28). In the same way, the approach adopted by Sullivan L.J. in R (Save Britain's Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ. 334 is summarised in the following sentence:

"If it is accepted that works are capable of having significant effects on the environment, the definition of "project" in Article 1.2 should, if possible, be construed so as to include, rather than exclude, such works." (at para 17).

These cases do not assist in relation to the approach to be adopted in answering the distinct question whether or not the project is likely to have a significant effect on the environment.

33. Mr Pereira relies in particular on the following passage in the Commission Guidance on EIA Screening:
"Those responsible for making screening decisions often find difficulties in defining what is "significant". A useful simple check is to ask whether the effect is one that ought to be considered and to have an influence on the development consent decision. At the early stage of screening there is likely to be little information on which to base this decision but the following list of questions may be helpful."

It then sets out a list of questions to be considered. Mr Pereira submits that this passage echoes closely the dictionary meaning of "significant" and that "significant effects on the environment" should be interpreted as bearing this meaning.

34. On behalf of the Defendant, Mr Maurici draws attention to the following matters in relation to the Commission Guidance.

(1) The preface to the Guidance states that it "cannot substitute for Member State guidance on EIA which should always be referred to first". In England and Wales there is Member State Guidance in the form of Circular 2/99 which was considered and applied in the screening direction under challenge.

(2) The Guidance states at B 3.4.1 that Section B 4 is "intended to be of assistance where there is no Member State Guidance or where the need for EIA is still not clear." The sentence relied on by the Claimant in this case appears in Section B 4.

(3) Commission Guidance is not binding.

35. I am unable to accept that the Commission Guidance intended to substitute a test of general application for a case-by-case expert evaluation. The Guidance makes clear that this is not the case.

(1) The Guidance states in terms that the checklist is to be used in case-by-case screening.

(2) The particular sentence on which the Claimant relies is said to be no more than a "useful simple check" that may be applied alongside the primary decision making tool i.e. the checklist of criteria for evaluating the significance of environmental effects.

(3) Neither the sentence relied on by the Claimant nor the checklist removes the need for the exercise of judgment on the question of significance. Rather, they recognise that a fact-sensitive judgment is required to be exercised in each case.

(4) The list of questions, set out at paragraph 25, above, provides further evidence of the nature of the evaluation process contemplated.

36. Furthermore, I consider the approach and meaning contended for by the Claimant are contrary to authority and wrong in principle.

37. Mr Pereira drew my attention to the fact that courts in England and Wales have been prepared to rule on the meaning of "likely" in Article 2(1) of the Directive and, indeed, have given it a generous interpretation. Thus, for example, in R (Morge) v Hampshire County Council [2010] EWCA Civ. 608 Ward L.J. observed of the EIA Regulations:

"Being a transposition of the EIA Directive which is wide in scope and broad of purpose, it must be implemented in that spirit. Thus "likely" connotes real risk and not probability."

Mr Pereira submits that I should adopt a similar approach and seek to explain the meaning of "significant". However it seems to me that there is an important difference between these two concepts in Article 2(1) which should be reflected in the court's approach. The former is entirely suitable for clarification by the court. Legal rules often employ various standards as to the degree of likelihood of the occurrence of an event which can be expressed in varying ways. The court is in a position to provide clarification as to the degree of likelihood contemplated by the rule. By contrast, the latter concept of "significant effects on the environment" depends on an assessment of the future impact of a development in a particular case and is pre-eminently a matter for expert judgment in the context of the particular case. For this reason I do not consider that the cases defining "likely" in Article 2(1) assist the Claimant in her submissions.

38. It is well established that the question of "significant effects on the environment" is a matter for judgment by a decision-maker who possesses both knowledge of local conditions and the necessary expertise. It is reviewable on grounds of Wednesbury unreasonableness. In R (Jones) v Mansfield D.C. [2003] EWCA Civ. 1408; [2004] Env. L.R. 21 Dyson L.J. held in relation to earlier EIA Regulations that the question whether the development would be likely to have "significant effects on the environment by virtue of factors such as its nature, size or location" was a matter for decision by the local planning authority subject to review on Wednesbury grounds. Dyson L.J. observed (at paragraph 17):

"Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment 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 also considered that the judgment of the Court of Justice in Case C-72/95 Kraaijeveld supported that view.

39. Similarly in R (Goodman) v London Borough of Lewisham [2003] EWCA Civ. 140; [2003] Env. L.R. 28 the Court of Appeal held that this is an enquiry of a nature to which the Wednesbury principle applies. On this occasion the court referred (at paragraph 9) to the judgment of Sullivan J. in R (Malster) v Ipswich D.C. [2002] PLCR 251 where the judge observed that "a detailed knowledge of the locality and expertise in assessing the environmental effects of different kinds of development are both essential in answering that question, which is pre-eminently a matter of judgment and degree rather than a question of fact. Unlike the local planning authority, the court does not possess such knowledge or expertise." (at para. 61)

40. I consider that this approach is entirely consistent with that of the Court of Justice. In Case C-508/03 Commission v United Kingdom [2006] E.C.R. I-3969; [2007] Env. L.R. 1, the Commission sought to challenge a decision by the local planning authority that the Westfields Shopping Centre would not be likely to have significant effects on the environment. The Court rejected the Commission's claim on the basis that it had failed to establish on the basis of at least some specific evidence that the competent authorities had made a manifest error of assessment. Furthermore it rejected the submission that in challenging such a decision it was possible to rely on a presumption that large scale projects were automatically likely to have significant effects on the environment. (See paragraphs 88-92).

41. More recently, the issue has been considered by the Court of Appeal once again in R (Bateman) v South Cambridgeshire D.C. [2011] EWCA Civ. 157. It is a curious feature of that case that Mr Richard Drabble QC on behalf of the Claimant advanced the very argument advanced by Mr Pereira in the present case. Furthermore, he drew attention to the judgment of Sullivan L.J. in granting permission to apply for judicial review in the present case. Moore-Bick LJ observed:

"18. In support of his submission as to the meaning to be given to the word "significant" in this context Mr. Drabble referred us to the checklist in the European Commission's Guidance on EIA Screening published in 2001, which suggests that a useful simple check as to whether an effect is significant is to ask oneself whether it is one that ought to be considered and to have an influence on the decision whether to grant development consent. However, in R v. St. Edmundsbury Borough Council ex parte Walton [1999] Env. L.R. 879 Hooper J. (as he then was) expressed the view that the council's decision not to require an environmental statement under the forerunner of the current regulations, the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 , was not Wednesbury unreasonable, even though, if one were prepared, it might consider that the development was likely to have effects that were sufficiently serious to justify a refusal of planning permission. Accordingly, Mr. McCracken Q.C. submitted that there is no inconsistency in the present case between deciding that the development will not have significant environmental effects and calling for detailed assessments of increased traffic movements, landscape effects and noise.

19. For my own part, I do not think that one should attempt to place too rigid an interpretation on the word "significant" in this context, but the main difficulty I have with this part of Mr. Drabble's argument is that, if his submissions are both correct, an EIA would be required in virtually all cases in which a development might possibly have some effect on the environment, which does not seem to me to be what the directive intended. However, for reasons which will become apparent it is not necessary to reach a final decision on either of these questions in the present case. I would therefore prefer not to place a gloss of my own on the words used in the Regulations and leave it to planning authorities to decide on a case by case basis whether the development under consideration is likely to have a significant effect on the environment, as that expression is to be understood in the light of the developing case law of the European Court."

42. The observations of Moore-Bick L.J. on the point which has now been argued before me, were, obiter. Furthermore, he may not have had the advantage of the full argument and citation of authority which I have enjoyed. Nevertheless, I am in total agreement with his observations.

43. First, the approach for which the Claimant contends is erroneous in that it would transfer the focus from whether a project was likely to have significant effects on the environment to whether the effect is one that it is relevant to consider and which might influence the development consent decision. A wide range of matters may be relevant to the latter decision and might influence it notwithstanding that they are not capable of having significant effects on the environment. I do not read the Commission Guidance as intended to require such an approach.

44. Secondly, the Claimant's submission would have the effect of substituting a new and much lower test for that set out in the Directive and the Regulations. As Moore-Bick L.J. observed in Bateman, if this submission were correct an EIA would be required in virtually all cases in which a development might possibly have some effects on the environment. The EIA Directive was drafted so as only to apply where projects were likely to have significant effects on the environment (see Recital (1) and Article 2(1)). It was not intended that EIA be required in respect of any development that might have any effect on the environment. The fact that the EIA Directive has been said to have a wide scope and broad purpose does not mean that it is permissible to re-cast the test laid down in the Directive and to substitute the lesser test for which the Claimant contends.

45. Thirdly, I accept the submission of Mr Maurici that it would not be appropriate for the court to try to lay down a single defined test of "significant effects on the environment" for application in all cases. I note that the Commission and the Court of Justice have not attempted to do so. Furthermore, in Bateman Moore-Bick LJ considered that one should not attempt to place too rigid an interpretation on the word "significant" in this context. For my part I doubt that it would be possible to do so without departing from the approach adopted in the Directive. The test of "significant effects on the environment" is intended to confer discretion on expert decision-makers to take decisions on a case-by-case basis. There is no single, hard-edged test appropriate for application in all cases.

Reference to the Court of Justice European Union.

46. In the alternative the Claimant seeks a reference to the Court of Justice of the European Union for a preliminary ruling on the meaning of "significant environmental effects" within Article 2(1) of the EIA Directive. Mr. Pereira submits that a reference is appropriate in this case because the question is one of general importance and a ruling from the Court of Justice is likely to promote the uniform application of the law throughout the European Union.

47. Contrary to the submission of the Claimant, the principles set out in Case 283/81 CILFIT [1982] E.C.R. 3415 have no application in this case as this court is not a court of final instance.
48. I decline to exercise my discretion to make a reference for a preliminary ruling. I consider that the issue in Ground 1 is entirely appropriate for decision by this court.

49. For these reasons Ground 1 fails.

Ground 2: The Secretary of State's reasons for the screening direction were defective in relation to the possible impact of removal of asbestos and mitigation measures.

50. As originally pleaded in the Claimant's Statement of Facts and Grounds the Claimant alleged:
(1) That the screening decision unlawfully seeks to rely upon mitigating measures that should themselves be subject to EIA; and
(2) The Defendant could not reasonably conclude that there would be no significant effects.
However, the issue has shifted. It is now accepted on behalf of the Claimant that the Secretary of State was entitled to have regard to mitigating measures. Furthermore, it is no longer submitted that the decision was Wednesbury unreasonable. The Claimant's case on this Ground is now that "the evidence still fails to show what mitigation measures the Defendant has in mind, what consideration has to be given to them, and the basis on which it was concluded that there was no real risk of significant environmental effects". It was accepted by both parties before me that Ground 2 is therefore a narrowly confined reasons challenge.

51. It is necessary to refer to the facts in a little more detail.

52. The screening decision was contained in a letter dated 7th July 2009 and was in the following terms:
"The development proposed, namely re-development of the site to form 41 sheltered apartments for the elderly, car parking, landscape and access and new outdoor bowls green, indoor rink, club facilities and car parking, falls within the description at paragraph 10(b) of Schedule 2 to the 1999 Regulations, and exceeds the threshold in Column 2 of the table in the Schedule, but in the opinion of the Secretary of State, having taken into account the criteria in Schedule 3 to the 1999 Regulations, would not be likely to have significant effect on the environment by virtue of factors such as its nature, size or location.

Accordingly, in exercise of the powers conferred on her by Regulations 9(1) and 6(4) of the 1999 Regulations, the Secretary of State hereby directs that the development for which planning permission is sought ... is not EIA development."

53. By letter dated 28th July 2008 the Claimant's solicitor requested detailed reasons why it had been concluded that the proposal was not EIA development.

54. By letter dated 4th August 2009 the Defendant gave the following reasons:

"The appeal is for a re-development to form 41 sheltered apartments for the elderly, car parking, landscape and access and new outdoor bowls green, indoor rink, club facilities and car parking. The development falls under the description at paragraph 10(b) of schedule 2 to the 1999 Regulations - Urban development projects. This includes the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas.

The site is not within an approved Green Belt or AONB, nor is it in or adjacent to or likely to affect an SSSI, and no protected species are affected, however as the site area is 0.7 hectares the development exceeds the applicable thresholds and criteria guidance given in column 2 of the table in that schedule of being over 0.5ha, and so requires EIA screening.

The guidance given in the indicative criteria/thresholds in schedule 3 to the 1999 Regulations, is that in addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions, and noise EIA is unlikely to be required for the development of land unless the new development is on a significantly greater scale than the previous use, or the type of impact are of a markedly different nature or there is a high level of contamination.

Developments proposed for sites which have not previously been intensively developed are more likely to require EIA if;

The site of the scheme is more than 5 hectares; or
They would provide a total of more than 10,000m2 of new commercial floor space; or 
The development would have significant urbanising effects in a previously non-urbanised area, (e.g. a new development of more than 1,000 dwellings).

• The current use of the site is as a bowls club and so the land has already been developed, and use as a bowling club already established.

• The site is 0.7 hectares and well under the guidance given of EIA being required for land which has not previously been intensively developed (over 5ha).

• The residential part of the development is for 41 apartments. This again is below the guidelines given (a new development of more than 1,000 dwellings).

• The land is not in a sensitive area, nor does it affect a European site as given within the meaning of regulation 10 of the Conservation (Natural Habitats etc.) Regulations. So any impact would be of a local nature only.
In conclusion this re-development would not have significant effects on the environment considering the size, nature and location of the development."

55. By letter dated 13th August 2009 to the Defendant the Claimant's solicitor set out fourteen reasons why it was considered that the development was likely to have significant adverse effects and should therefore be subject to EIA. These included:

"The development also includes the demolition of an existing indoor bowls centre built with asbestos material."

56. By letter dated 26th August 2009 the Defendant stated:

"Having considered the screening direction, and the points you have raised, I am of the opinion that this would still not be EIA development. EIA would normally be needed for major developments which are of more than local importance, development which are proposed for particularly environmentally sensitive or vulnerable locations, and developments with unusually complex and potentially hazardous environmental effects. This development is not in a sensitive area as according to the EIA Regulations and as the level of development is relatively small, it falls short of the selection criteria for assessing likely environmental impacts as contained in Schedule 3 of the Regulations. The matters you have raised will be before the Inspector to consider as material to the merits of the appeal for debate at the Inquiry, and having read Dave Flower's letter of 4th August I feel there is really nothing more that I could usefully add."

57. By letter dated 3rd September 2009 the Claimant's solicitor pointed out that "this development does have potentially hazardous environmental effects e.g. the demolition of an existing indoor bowls centre built with asbestos materials."

58. By letter dated 9th September 2009 to the planning inspectorate, Planning Issues, acting on behalf of the developer, asked the Secretary of State to reconsider his screening decision. It suggested that the Defendant invite representations from the Council and from the Claimant's solicitors on the suggestions made in that letter as to the approach to be followed and that any reconsideration of the decision take place once any such representations had been received and considered. In its letter of 9th September 2009 Planning Issues maintained that the proposed development was not EIA development. The letter addressed the matters identified in the Commission Checklist and included the following passage:

"Substances which are potentially harmful to human health (including asbestos) will be handled during demolition of the existing bowls club buildings. The relevant environmental standards will be adhered to and there will be no large change in environmental conditions, the effect will not extend over a large area, no people and no other receptors will be affected. There will be no breach of environmental standards. There will be no effect on valuable or scarce resources. There will be no significant effect.

59. By letter dated 11th September 2009 to the Defendant, the Claimant's solicitor referred to the representations by Planning Issues in the letter dated 9th September 2009. The Claimant's solicitor submitted that most of the specific statements in which Planning Issues contended that there would be no significant effects were cases where there would be or would be likely to be significant effects if account were taken of the test of significance as recognised by the Commission in its Guidance. The letter enclosed a screening checklist following the model in the Commission Guidance. It included the following.

3. Will the project involve use, storage, transport, handling or production of substances or materials which could be harmful to human health or the environment or raise concerns about actual or perceived risks to human health? Yes.

Substances which are potentially harmful to human health (including asbestos) will be handled during demolition of the existing bowls club buildings. Yes.

Unless effective mitigation measures are put in place the harm and risk to human health is significant including causing death. Given the significance of the impact, and in accordance with Article 5(3) the mitigation measures must be subject to EIA.

60. By letter dated 28th September 2009 to the Defendant Planning Issues responded to the Claimant's Screening Checklist. The letter repeated verbatim the passage from the letter of 9th September 2009 quoted at paragraph 58, above.

61. On 30th September 2009 the Claimant's solicitors sent a pre-action protocol letter to the Defendant.

62. On 5th October 2009 Planning Issues wrote to the Defendant formally requesting that the Secretary of State issue his reasoning on how he exercised his judgment when issuing the EIA screening direction of 7th July.

63. By letter dated 7th October 2009 the Defendant stated that, as stated in the letter of 24th September 2009, the Secretary of State had reviewed whether the development was EIA development and had again concluded that it was not. The letter enclosed a copy of the EU Commission Checklist completed by an officer acting on behalf of the Secretary of State in reaching that conclusion. The Checklist stated at paragraph 3:

3. Will the project involve use, storage, transport, handling or production of substances or materials which could be harmful to human health or the environment or raise concerns about actual or perceived risks to human health? Yes.

Demolition of the existing bowls club will involve the removal of asbestos. No.
Mitigating schemes regarding the removal of asbestos can be implemented to avoid the threat to human health.

64. It is now common ground between the parties that it is open to the decision maker, in performing the screening exercise, to take into account mitigating measures. (See Gillespie v First Secretary of State [2003] Env. L.R. 30 per Pill L.J. at para 37, per Laws L.J. at para 46; R (Catt) v Brighton and Hove City Council [2007] EWCA Civ. 298 per Pill L.J. at para 35; R (Dicken) v Aylesbury Vale District Council [2007] EWCA Civ. 851).

65. In Case C-75/08 R (Mellor) v Secretary of State for Communities and Local Government [2010] Env. L.R. 2, the Court of Justice explained that it is necessary for third parties and administrative authorities to be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary and for them to have sufficient information to enable them to challenge the decision by legal proceedings, if that is thought to be appropriate. The court stated (at para 59):

"...effective judicial review, which must be able to cover the legality of the reasons for the contested decision, pre-supposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However, where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in subsequent communication made at their request..."

66. In considering the adequacy of the reasons given it is important to bear in mind the domestic case law on planning applications where the courts have held that "reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for the decision." (South Bucks. District Council v Porter (No. 2) [2004] 1 WLR 1953 per Lord Brown at para 36). The nature and purpose of a screening decision make it an a fortiori case. Thus in Zeb v Birmingham District Council [2009] EWHC 3597 (Admin.) Beatson J. stated:

"It is important to remember what the purpose of a screening opinion is. It is to ascertain whether a development proposal requires an environmental assessment under the Directive. Detailed reports are not required. What is required is an initial assessment of an intended proposal. One sees this from the terms of the Regulations, in particular paragraph 5(2)(a). That refers to sufficient information to identify any planning permission granted for development for which a subsequent application is made. In relation to the nature and purpose of a development, paragraph 5(2)(b) states that a "brief description" is required. Although an authority is empowered to call for further information, the default position (see paragraph 5(4)), is that an authority is required to adopt a screening opinion within three weeks of a request. That default position gives some indication of the level of detail and the investigation required by the authority." (At para 25).

67. Similarly in R (Anderson) v City of York Council [2005] EWHC 1531 (Admin.), Elias J. observed that a screening opinion should not be read like a statutory provision but should be interpreted just as it would be by a well informed reader who was aware of the character of the site and the background of the proposal. Furthermore he accepted that it was not necessary to refer to all relevant documents that may have been relied upon. (at paras. 34-36).

68. In R (Bateman) v South Cambridgeshire D. C. [2011] EWCA Civ. 157 the Court of Appeal considered a reasons challenge to an EIA screening decision. Moore-Bick L.J. expressed the principles as follows:
"11. In R (Friends of Basildon Golf Course) v Basildon District Council [2010] EWCA Civ. 1432 Pill L.J., with whom Carnwath and Rimer L.JJ. agreed, emphasised in paragraph 62 of his judgment that the decision taken on a screening opinion must be carefully and conscientiously considered and must be based on information which is both sufficient and accurate. The opinion need not be elaborate, but must demonstrate that the issues have been understood and considered.

...

20. ...when considering a submission of this kind I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term "screening opinion".

21. Having said that, it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request."

69. Furthermore, Mummery L.J., concurring in the approach but not in the result, stated (at paragraph 40) 
"In my judgment the decision not to have an EIA is a significantly different kind of decision from a refusal or grant of planning permission. The reasons for a preliminary administrative decision whether or not to have an EIA do not have to satisfy the same standards of information and reasoning as would apply to a substantive decision on a planning application. The degree of "grappling" is different, more provisional and less exacting. What matters with the decision of this character is that the reasons for it that were made available to the claimants suffice to satisfy the criteria in the passage cited from Mellor."

70. In this regard I also note that the Commission Guidance itself contemplates the use of a checklist in which relatively brief reasons for the various conclusions are set out. This is apparent from the examples provided.

71. I consider therefore that the reasons for a screening decision need not be elaborate. They must demonstrate that the issues have been understood and considered. They must provide sufficient information to enable interested parties to know the basis of the decision that an EIA is not required and to enable them to take steps to protect their rights under EU law. Furthermore the reasons must be read in the context of the correspondence in relation to the relevant issue. (See Bateman per Moore-Bick L.J. at para. 22, per Mummery L.J. at para. 36).

72. On behalf of the Claimant Mr Pereira submits that the answer "Mitigating schemes regarding the removal of asbestos can be implemented to avoid the threat to human health" fails to show what mitigation measures the Defendant had in mind, what consideration had been given to them and the basis on which it was concluded that there was no real risk to significant environmental effects.

73. Mr Maurici, on behalf of the Defendant, suggests that it would have been open to the Claimant to request further reasons for the decision on this specific point of the removal of asbestos. I accept that in Mellor itself the Court of Justice considered (at para. 65) that:

"It cannot...be ruled out that in the case in the main proceeding the Secretary of State's reasons might be considered sufficient, taking into account, in particular, factors which have already been brought to the attention of interested parties, provided that the latter can ask for and obtain from the competent authorities, subject to judicial review, the necessary supplementary information to fill any gaps in that reasoning."
However that does not, to my mind, provide a satisfactory answer in this case where requests were in fact made, resulting in the provision, under cover of the letter of 7th October 2009, of the checklist previously completed by an officer acting on behalf of the Secretary of State. The court now has to consider the adequacy of the reasons given.

74. The reasons given in relation to this aspect of the decision are undoubtedly extremely brief. However I have come to the conclusion that they are sufficient.

(1) The reasons have to be considered in the context of the preceding correspondence and interpreted as they would be understood by a well informed reader who was aware of the character of the development and the background of the proposals,

(2) Planning Issues in their letters of 9th September 2009 and 28th September 2009 had addressed the asbestos issue, stating that relevant environmental standards would be adhered to and that there would be no significant effect. I consider that the reference in the Screening Checklist to mitigating schemes regarding the removal of asbestos has to be read in that context and that it would be understood as referring to the regulatory regime for asbestos removal.

(3) That regulatory regime is a matter of law and would, in any event, be well known to those interested parties and their advisors participating in this correspondence. There would have been no virtue in expressly setting out references to the regulatory provisions. On the contrary it would be unduly burdensome to those making screening decisions, which is a summary procedure, were they required to set out chapter and verse on well known regimes in order to demonstrate sufficient reasons for a screening determination.

(4) This is not a case in which the decision-maker was confronted with a novel situation or where it had been suggested that there was anything about the mitigating features which rendered them unusual. In the correspondence there had been no suggestion that compliance with environmental standards could not adequately mitigate these adverse consequences of this development. (See, in this regard, Anderson per Elias J. at para. 61). On the contrary, the relevant environmental standards have been fully tested and tried and the likely effectiveness of the remedial measures could be predicted with confidence. (See Anderson per Elias J. at paras 60-63; Catt per Pill L.J .at para 34).

(5) In the context of what the Claimant accepts as a modest development, the reasons given are sufficient to explain why the decision-maker concluded that the removal of asbestos would not have significant effects on the environment.

(6) The response was sufficient to enable the interested parties to understand the basis on which the competent authority had decided that an EIA was not necessary and to enable them to challenge the decision by legal proceedings if they considered it appropriate.

75. For these reasons, Ground 2 also fails.