Case No: CO/6926/2012
Neutral Citation Number:  EWHC 783 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Rolls Building
110 Fetter Lane
London EC4A 1NL
Date: Monday 28 January 2013
THE HONOURABLE MR JUSTICE BURTON
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RAYNER THOMAS Claimant
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CARMARTHENSHIRE COUNCIL Defendant
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DAVIS COACHES LTD Interested Party
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Dr Paul Stookes (of Richard Buxton Environmental and Public Law) appeared on behalf of the Claimant.
Ms Tina Douglass (instructed by Carmarthenshire County Council) appeared on behalf of the Defendant.
Mr Benjamin Blakemore (instructed by Gomer Williams & Co Ltd) appeared on behalf of the Interested Party.
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Hearing dates: 23 (Cardiff Civil Justice Centre) and 28 January 2013
Mr Justice Burton:
1. The Interested Party, Davis Coaches Ltd, is an operator of school buses from a coach park on part (Area 6) of a former colliery site at Cwmgewili, Llanelli, in Carmarthenshire ("the Former Colliery") and has been granted retrospective planning permission by the Defendant Council after an unsuccessful appeal against an enforcement notice. The Claimant is owner and occupier of the neighbouring land and challenges the decision of the Defendant. The overall Former Colliery site (Areas 1 to 6) is 7.4 hectares. The Interested Party's site the subject of the challenged permission was said to be 0.4 hectares. (I shall return to these measurements below.)
2. There has been a considerable planning history in relation to the former Colliery site as a whole. Area 4, which is adjacent to, and on land higher than, Area 6 is permitted, pursuant to a 2001 decision, to be used as a vehicle driver training centre, and in 2005 such permission was extended to cover other uses and other areas of the Former Colliery site. At that stage, Area 6 was to be cleared and landscaped. From about 2008, the Interested Party has been using Area 6 for the parking and maintenance of buses/coaches. The Defendant refused retrospective planning applications by the Interested Party in 2008 and 2009. By this time, the Claimant was raising concerns about flooding caused by surface water run-off, as a result of inadequate drainage onto her land from the whole of the Former Colliery site, including Area 6, and provided, as part of her opposition to the Interested Party's then applications in respect of Area 6, a technical report by a consultancy, ADAS, dated May 2009.
3. On 21 December 2009, an enforcement notice was issued by the Defendant in respect of its use of Area 6, retrospective permission having been refused. The Interested Party put in appeals against both the refusal of the 2009 application and the enforcement notice. By the time of the appeal hearing before the Inspector in May 2010, there was a proposed s106 Agreement (an agreement pursuant to s106 of the Town and Country Planning Act 1990 as amended ("the 1990 Act")) to which the owners of Areas 4 and 3 (where some coaches were also parked) would also be parties, which the Inspector took into account by the time of his decision on 4 June 2010, and in that context, the Interested Party's appeal against the refusal of planning permission had been effectively abandoned, and its appeal against the enforcement notice was limited to an application for an extension of time. The Inspector set out the following in his Conclusions:
"15. Whilst it is intended that the S106 Agreement will satisfactorily address long-term arrangements for highway safety and drainage, it is estimated that it may take some 3-6 months to finalise the Agreement and complete the improvements. In practical terms the parties are confident they will be successful and the development will then benefit from planning permission. However, I have considered the current appeal in its own right and have made no assumptions about the S106 Agreement, the related issue of planning permission or the improvement works themselves. If the main parties cannot reach agreement the enforcement notice must be capable of standing alone.
16. In reaching my conclusions above I have taken into account all relevant matters raised. For the reasons given above I conclude that a reasonable period for compliance would be 6 months, and I am varying the enforcement notice accordingly, prior to upholding it. The appeal under ground (g) succeeds to that extent."
4. Against this background, the Interested Party made a further planning application in December 2009, as described by Mr Hywel Davies, the relevant officer dealing with matters on the Defendant's behalf from December 2009:
"24. On 11 December 2009 planning application E/22175 was validated: the said retrospective application was essentially a re-submission of the previously refused E/20978 planning application and sought consent to retain the use of the land as a coach depot and also the retention of the maintenance building, utility stores and storage container.
25. As part of the E/22175 planning there were numerous amendments to the initial proposal. An improved drainage plan was provided to address foul sewerage from both the application site and the existing driver training centre; passing places to the narrow road were proposed; an increased visibility splay was proposed and cleared; petrol interceptors at the lowest point of the site; areas permitted for parking on the driving centre site should be relinquished and landscaped. Not all of these improvements lay within the application site and a S.106 agreement would be required before the issue of any permission if the application was granted."
5. The Claimant complained about the Defendant's delay and alleged maladministration to the Public Services Ombudsman for Wales, who delivered a report dated 29 March 2011, relevant paragraphs of which are as follows:
"79. [The Claimant] has spent a considerable amount of time and money in trying to ensure that the development on her boundary, both authorised and unauthorised, does not pollute her land. This has proved a frustrating and stressful experience for her during a time of serious ill-health and has yet to be resolved. ...
80. The planning history reveals the piecemeal nature of the development. Despite its situation in a rural environment, the site formerly housed a colliery and given that previous use, it is understandable that the Council believes that such a brownfield site is suitable for the use to which it is now being put which is a coach depot and driver training centre providing local employment.
81. I believe, however, that the recent planning history which I have included in this report in some detail discloses an inconsistent and confused approach by the Council's Planning Department. ...
88. ... To remedy the injustice caused to [the Claimant] by this maladministration, the Council should resolve the outstanding issues as speedily as possible. ... If the proposed s106 agreement cannot be signed and the consent cannot be issued, then given that the Enforcement Notice is in existence and the date for compliance has passed, prompt consideration should be given to the issue. ...
89. I also believe that the stress and frustration suffered by [the Claimant] Mrs T due to the Council's failings should be recognised by a financial payment of £1,000 to recompense her in some way for the considerable time and effort she has been put to to try to protect her land. ..."
6. The Defendant's officers recommended the grant of the further application. Mr Davies describes the position:
"31. The authority deemed that there had been a change in circumstances since the refusing of the previous planning application, in that it had been established that the visibility splay at the access is under the control of the applicant, and as such the improved visibility splay could be controlled via the imposition of suitable conditions. In view of the above the Head of Transport withdrew its original objection and recommended approval on the proviso that the number of bus parking spaces associated with this development would be limited to 15 no. in total.
32. To address highway concerns, the planning permission was subject to the applicant entering into a Section 106 Agreement with the authority to ensure that all other existing bus parking areas within the training centre site be landscaped and no longer used for parking purposes, apart from the 3 no. buses permitted for the Training Centre. It was highlighted by the Head of Transport that there were at the time of the application proposals to close a number of central reservations to prevent right turn movements along the A48 dual carriageway between Cross Hands and Pont Abraham. These works have since been executed. As such, the authority was satisfied that the previous highway objection had now been overcome.
33. The most contentious issue raised by objectors related to the lack of adequate provision for foul and surface water disposal from the overall site (encompassing the driving centre). The adjacent landowner has continually maintained that field ditches around the perimeter of field enclosures within her ownership were being polluted due to the discharge of effluent from the driving training centre. It was also alleged that the pipe work for the septic tank serving the driving training centre had been damaged and this had further compounded the pollution problem. The objector in backing up her claims had previously commissioned an independent drainage report which was submitted to the Authority for consideration; at the time of the previous application; both reports were subject to a consultation exercise with the Environment Agency, as well as the Authority's Head of Public Protection. A drainage report was also commissioned by the applicant.
34. The drainage issue had been the subject of continued enforcement investigations by the Authority as well as by other internal/external agencies. However the authority deemed the concerns raised related primarily to the existing driving centre site, i.e. the elevated part of the site. The concerns of the objector had been highlighted to the applicant, who in turn submitted an amended drainage scheme in an attempt to address this matter.
35. The initial drainage scheme submitted in conjunction with the application had been amended; with connection by pumping to the main sewer superseded by a gravity foul line connection to the existing main foul sewer. The Environment Agency stated that it was satisfied with the revised drainage plans in principle and supported the holistic approach that had been taken by the applicants in trying to resolve existing drainage issues at this site. In the same light, the Head of Public Protection advised that it has no objection to the new proposed drainage scheme, and considered it would resolve current issues in relation to alleged pollution.
36. Members were advised that the Authority considered the concerns over drainage that led to the previous application being refused and now been adequately addressed and that the new drainage once implemented would resolve the existing problems associated with this site."
7. On 17 April 2012, a section 106 agreement was made between the defendant, the Interested Party, and the other landowners, and retrospective planning permission was granted to the Interested Party as follows:
"Proposal: RETENTION OF COACH DEPOT, INCLUDING MAINTENANCE BUILDING, UTILITY STORES, TEMPORARY OFFICES AND STORAGE CONTAINER (RESUBMISSION OF E/20978)
Location: LAND PART OF TRAINING PARK, CWMGWILI, LLANELLI, CARMS SA14 6PP.
The Permission hereby granted relates to the continuance of the use of the land detailed on the 1:1250 scale plan, received on 11 December 2009 and the amended 1:500 scale plan, received on the 23 March 2012 as a coach depot for the parking, maintenance and operation of a fleet of coaches not exceeding 15 in number.
The Permission hereby granted relates to the retention of the maintenance building, utility stores, temporary offices and storage container as shown on the 1:1-scale plans, received on 11 December 2009, unless amended by the following Conditions.
(i) Within one month of the date of this permission a detailed landscaping scheme for the area to be landscaped, as defined on the 1:100 scale plan submitted on 11 December 2009, including the retention of any existing landscape features and the indication of species, size and number of trees and/or shrubs to be planted, shall be submitted to the Local Planning Authority and shall, following approval of such a scheme in writing, be implemented in the next planting season, or at such other time as may be specifically approved in writing by the Local Planning Authority.
(ii) No use within the application site shall be extended or intensified without the prior written approval of the Local Planning Authority;
(iii) Within one month of the date of this permission, a scheme to install, manage and maintain petrol interceptors shall be submitted to the Local Planning Authority for approval in writing. The scheme shall be implemented as approved within one month of the date of approval;
(iv) Within one month of the date of this permission, the existing site access road shall be renewed/repaired for the first 10 metres, measured from the nearside edge of the C2130 carriageway (as shown on the amended plan received on 9 February 2011) to the satisfaction of the Local Planning Authority;
(v) Within three months of the date of this permission, a passing bay of 5.5 metres width over 10 metres length is constructed within the highway verge as shown on the 1:500 scale amended plan submitted on 9 February 2011 to be carried out by an Agreement under Section 278 Agreement - Highways Act, 1980;
(vi) Within one month of the date of this permission a scheme for the monitoring of surface water drainage and, if necessary in the opinion of the Local Authority following such monitoring, works for its control and disposal shall be submitted to the Local Planning Authority for approval in writing. The scheme shall be implemented as approved within one month of the date of approval."
8. The grounds for challenge to this decision by the Claimant, put forward by Dr Paul Stookes of Richard Buxton Environmental & Public Law, are as follows:
i) There ought to have been, prior to the grant of such permission, at least a full Environmental Impact Screening assessment and, if appropriate as a result, a full Environmental Impact Assessment (EIA). As there was not, the permission should be quashed (the "EIA argument").
ii) There has been a failure to take effective planning enforcement action by the Defendant (the "Enforcement argument").
iii) The granting of permission upon the basis of conditions 3(i), (ii), (iii) and (vi) was unlawful (the "Conditions argument").
iv) The imposition of condition 3(vi) wrongfully disappointed the legitimate expectations of the Claimant (the Surface Water Scheme argument).
9. I shall deal first and shortly with the Enforcement argument, the second of these four. The Defendant's case, put forward by Ms Tina Douglass of Counsel on its behalf, is that the argument, while in any event submitted to be ill-founded, leads the Claimant nowhere. The Defendant did issue an enforcement notice, which was appealed, and in the event only successfully appealed to the extent of an extension of time being granted; there was then the grant of the permission which, although now challenged, has the effect, unless and until quashed, of causing the enforcement notice to cease to have effect, pursuant to s180 of the 1990 Act. Any delays by the Defendant in the past have been the subject matter of complaint to the Ombudsman, but have no relevance to this application, and in particular by way of any challenge to the grant of permission. Dr Stookes recognised the force of this, and that in essence what he would seek to submit was that if the permission were set aside, then there should be a mandatory order to enforce the notice, which would now once again spring to life. It is clear to me that if the permission were quashed, then the Defendant must be left to decide what steps to take, and that a mandatory order would be wholly inappropriate. In any event, after discussion, and by the end of his opening, Dr Stookes did not pursue this ground.
10. Before addressing the outstanding challenges, I should record that, not only did the Defendant support before me the validity of the decision and resist the basis of the Claimant's challenge, but so did the Interested Party, for whom Mr Benjamin Blakemore of Counsel appeared. He in particular emphasised that the Interested Party has acted to its detriment, not only in reliance upon the grant of the planning permission but also in relation to its compliance with the conditions imposed by it, in particular by reference to the evidence of its Director, Mr Kenneth Davis, complying with the required drainage works to the satisfaction of the Defendant and the Environment Agency
The EIA Argument
11. The first question is whether the requirement for EIA (whether for an initial comprehensive screening or for a full assessment itself) arose. Although there is a live argument that the Town and Country Planning (Environment Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations") do not adequately transpose Directive 2011/92/EU ("the EIA Directive"), at least in Wales (see R (Baker) v Bath & North East Somerset DC  1 P & CR 4) (to which I shall return,) the parties have agreed that in relation to all save one matter I can safely look at the 1999 Regulations and that the following passage in R (Goodman) v LB Lewisham  Env LR 28 CA in the judgment of Buxton LJ applies. Like this case, that was one in which the issue was whether development fell within the description of the projects set out in Annex II of the Directive (Schedule 2 of the Regulations). I quote:
"5. The table in schedule 2 largely tracks the list of types of development provided in Directive 85/337. Most of the categories relate to agricultural or industrial development. We are concerned with development as set out in part 10 of the Schedule, the general heading of which is ‘Infrastructure projects'. Sub-categories (a) and (b) of such development are:
(a) Industrial estate development projects
(b) Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas"
The threshold adopted by the United Kingdom for determining whether particular developments falling within those categories come within the reach of the Regulations is that such developments fall under schedule 2 if the area of the development exceeds 0.5 hectare.
7. The first question for a planning authority is, therefore, to determine whether the application before it is a "Schedule 2 application": that is, in terms of the definition set out in §5 above, whether the development falls within the descriptions and limits set out in Schedule 2. Although the application becomes a Schedule 2 application by decision of the authority; and does not thereafter become an application for EIA development unless the authority further so decides; the authority cannot avoid the implications of the application being for EIA development simply by not taking the preliminary decisions at all."
12. The Defendant must decide whether or not a project falls within Annex II/Schedule 2. In so doing, it must recognise the very wide scope and broad purpose of the Directive/Regulations (see Abraham v Region Wallonie, a decision of the Second Chamber of the ECJ in case C/2/07 28 February 2008).
13. If the Defendant concluded that the project fell within Schedule 2, then it must carry out a comprehensive screening within Article 4(2) of the Directive as to whether the project is likely to have significant effects on the environment (Commissioner v Italy  ECR I/5975, which screening decision must be made available to the public (Article 4(4)).
14. The Claimant here submits that the Defendant erred in failing to conclude, before permission for the use of Area 6 for parking and maintenance for 15 coaches was given, that it fell within Annex II/Schedule 2 and required an EIA screening. It is common ground that no such comprehensive screening was carried out.
15. The Claimant asserts, and the Defendant denies, that the project did fall within Paragraphs 10(a) and 10(b) of Schedule 2, set out in the citation from Goodman above. Dr Stookes referred me to material which supports a wide interpretation of those paragraphs and of the wideness of the ambit of the words "Infrastructure project" and "Urban development project", not simply in Goodman itself (paragraph 13 of Buxton LJ's judgment), but in the European Commission Guidance: Interpretation of definitions of certain project categories of Annex I and II of the EIA Directive , particularly at pp 33-35, and to similar effect in the Welsh Assembly Government Consultation Paper of 2006 at p10. However, it is unnecessary to resolve the dispute between the parties as to whether this coachpark does or does not fall within either such definition, if the threshold of 0.5 hectares applies.
16. Since the first day of the hearing (last Wednesday) during which the Claimant's submissions were closed and Ms Douglass was nearing the end of hers, evidence has been sought to be adduced by the Claimant putting in issue for the first time the size of Area 6 and the consequent application of the 0.5 hectare threshold. Notwithstanding not receiving the asserted fresh assessment from the Claimant until Friday afternoon, the Defendant has over the weekend answered it. I am satisfied that, insofar as the Claimant has challenged the measurement now some 7 months since the first time upon which there was reliance upon the threshold by the Defendant, the Defendant's evidence is to be preferred. Insofar as an adjournment is sought (and none is by the Claimant), I am satisfied that no benefit would be gained from it, and that I am entitled in any event to resolve any disputed evidence in favour of the Defendant. It may be that the Claimant has measured a different area, but I accept the evidence of the Defendant that the measurement of Area 6 for which permission was granted is, at highest, 0.46 hectares, and that the threshold applies.
17. In those circumstances Area 6, the site for which the challenged permission was given, is less than the threshold of 0.5 hectares. Although Dr Stookes seeks to contend that reference should be made to the balance of the Former Colliery site, that is to my mind clearly only relevant to the context of Paragraph 13 of Schedule 2, to which I refer below and to which the threshold exclusion does not apply. Dr Stookes is unable to point to any provision or authority to the effect that there is any overriding concept of likely significant effect which excludes the threshold permitted by Article 2(b) of the Directive, which has been incorporated into Schedule 2. He refers to the words of Lord Carlile QC (sitting as a Deputy Judge) in R (on the application of Birch) v Barnsley MBC  EWHC 416 (Admin), but I do not consider that they are sufficient support for such proposition. Paragraph 13 (discussed below) is the only paragraph within which this consideration arises where the exempting threshold does not apply. Dr Stookes does not submit that the threshold would be ousted even if I were satisfied (which I am not, in any event) that (by reference to the proximity - but not close proximity - of a Site of Special Scientific Interest (SSSI)), Area 6 could be said to be in a sensitive area."
18. I turn then to Paragraph 13 of Schedule 2, which reads as follows:
"13.-(a) Any change to or extension of development of a description listed in Schedule 1 or in paragraphs 1 to 12 of Column 1 of this table, where that development is already authorised, executed or in the process of being executed, and the change or extension may have significant adverse effects on the environment."
19. It is common ground that the threshold of 0.5 hectares does not apply so as to exclude it, if Paragraph 13 otherwise applies. There is discussion in the EC Guideline referred to above (at p8) of the issue of "salami-slicing", i.e. the practice of splitting projects up into sub-projects, so that each of them falls below screening thresholds, and Paragraph 13 is one way of avoiding this.
20. The first question is whether the new use of Area 6 can be seen as an extension of the existing project in the Former Colliery site. Dr Stookes refers to the Planning Officer's Report and recommendation in relation to the eventual permission granted for Area 6 in the Report to Planning Committee for 1 April 2010, in which there is recorded:
The application site forms part of the former Cwmgwill Colliery site which is located in an open countryside location..."
And then under "Conclusion", on page 140, it is said:
"In view of the above, what the Authority has to determine is whether or not the use of the site as a coach depot is appropriate at this location and whether or not it represents an acceptable extension to the existing commercial enterprise operating from this location."
21. I am satisfied that the claimant is right to submit that Area 6 and the permission in respect of its use should be interpreted, by reference to Paragraph 13, as being an extension of development of land otherwise listed in Schedule 2, where that development is already authorised or executed. The question is whether such extension, or Area 6 being such an extension, falls within the balance of paragraph 13.
22. Dr Stookes submits that the test in Paragraph 13 above set out inadequately transposes the Directive, which reads as follows:
"(a) Any change or extension of projects listed in Annex I or this Annex, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I)."
23. He relies on the words of Collins J at paragraph 44 of Baker as follows:
"It seems to me that that is clearly not only consistent with but applies the approach that it is necessary to look at the effect of any modification or modifications on the project, or on the development, and to see whether the whole, as modified, has or is likely to have other significant effects which need to be taken into account and may require an environmental impact assessment, albeit they do not fall themselves within the criteria which have been adopted by the Member State."
24. He points to the fact that in England, but not in Wales, there has now been re-enactment of Paragraph 13 in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2011 so as to read:
"13 Changes and extensions.
Any change to or extension of development of a description listed in Schedule 1 (other than a change or extension falling within paragraph 21 of that Schedule) where that development is already authorised, executed or in the process of being executed."
Then in column 2 it states:
(i) The development as changed or extended may have significant adverse effects on the environment; or
(ii) in relation to the development of a description mentioned in a paragraph in Schedule 1 indicated below, the thresholds and criteria in column 2 are met or exceeded."
25. It is plainly the case that if there is an argument as to the applicability of the 1999 Regulations I should look to the Directive, rather than to the 1999 Regulations. Dr Stookes submits that the consequence of my doing so is that I must conclude that the Defendant ought to have reached a conclusion, once it was apparent that the permission for Area 6 amounted to an extension of the existing project in the former colliery site, as to whether there were likely to be significant adverse effects on the environment from the total site, i.e. including the original site, even without the extension. Ms Douglass submits that, even assuming that I should be construing the Directive and not the 1999 Regulations, that is not the correct question, notwithstanding the words of Collins J. She submits that the decision for the Defendant before it can conclude that the EIA screening was necessary was as to whether the change or extension constituted by the additional project may have significant adverse effects on the environment, i.e. that the development as extended was thereby caused to have significant adverse effects, not by reference to the original project, from which permission would already have been given.
26. Dr Stookes did submit that the words "may have" should be regarded as imposing a different test from the ordinary words regularly applied in the authorities by reference to Article 2 of the Directive, whereby the issues would relate to whether projects were likely to have significant effects on the environment. But in the end, he did not pursue the case as to there being any such difference, and in my judgment rightly, given the reluctance of the European courts to indulge in such grammatical technicalities, on the basis that that the approach of the council in reaching such a decision should be guided by the words of Pill LJ in R (on the application of Loader) v Secretary of State for Communities and Local Government  Env LR 7 CA at paragraphs 25 to 28, in which effectively Dr Stookes supported the proposition that "likely to have" means no more than that there is a serious possibility of its happening, and by reference earlier to the words of Moore-Bick LJ in R (on the application of Bateman) v South Cambridgeshire DC  EWCA Civ 157:
"something more than a bare possibility is probably required, though any serious possibility would suffice."
27. The decision is one for the Defendant, and although the Defendant must apply what has been called by Dr Stookes a "precautionary approach", nevertheless it is a decision falling to be tested by reference to Wednesbury principles; see Goodman at paragraph 9 and Loader at paragraph 43.
28. Dr Stookes referred to the decision of Sullivan J in the Administrative Court in R (on the application of Lebus) v South Cambridgeshire DC  Env LR 17 at paragraph 46:
"It is not appropriate for a person charged with making a screening opinion to start from the premise that although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds. The appropriate course in such a case is to require an environmental statement setting out the significant impacts and the measures which it is said will reduce their significance."
29. However, this falls to be contrasted with, and overtaken by, two subsequent decisions of the Court of Appeal:
(i) The first is R (on the application of CATT) v Brighton and Hove CC  Env LR 32 (per Pill LJ):-
"33. ... There will be cases, ... where the uncertainties present, whether inherent or sought to be resolved by conditions, are such that their favourable implementation cannot be assumed when the screening opinion is formed.
34. On the other hand, there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence. There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion. It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required. An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment, and a planning judgment made ..."
(ii) The second is Loader (per Pill LJ):
"43. What emerges is that the test to be applied is:
‘Is this project likely to have significant effects on the environment?'
That is clear from European and national authority, including the Commission Guidance at B3.4.1. The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. Only if there is a manifest error of assessment will the ECJ intervene (Commission v UK).
The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker."
It seems to me clear that what this means is that a Council is entitled to take a reasonable view; on the one hand, there could be a case where there are likely to be significant effects but they can or may be able to be offset or alleviated: or the other hand is an assessment, taking into account proposals for ameliorative or remedial measures, that there are not likely to be significant effects. The latter is permissible.
30. Mr Hywel Davies describes what happened in his witness statement of 11 December 2012. He explains that the Defendant was satisfied that paragraph 10 did not apply, but that in any event the threshold applied. It did consider (although apparently without specific reference to Paragraph 13) that there were not likely to be significant effects on the environment. He states, at para 12, that:
"The authority concluded that the proposed development would not have significant effects on the environment and that concerns over drainage and surface water disposal could be addressed via the imposition of suitable conditions and/or section 106 agreement. In fact the s.106 agreement permitted planning gain in that it fixed problems on the training centre sit which could not otherwise be easily addressed. It limited the number of vehicles that could be parked at the site and imposed further requirements regarding landscaping. The authority deemed that the development for which planning permission was being sought for by application reference number E/22175 was not EIA development."
31. The context is important, and is clear from the very sentence which I have just quoted.
32. Ms Douglass carefully analysed the facts as to the drainage problem, as to which the Claimant had been complaining for some time, as set out above. She submits that it is and was entirely clear that the problem arose from the Former Colliery site, and in particular from Area 4, at a higher level than Area 6, and with defective drainage considerably exacerbated by the existence there of toilet facilities and an inadequate septic tank. In particular, after reciting the problems of e-coli due to such toilet facilities, and the problems of surface water run-off, the ADAS Report recorded that:
"The fall of the land means that the whole of Cwmgwili Colliery drains into the new development site to the two lowest points of the catchment - the two outfalls at the bottom of the development site."
33. The Officers' Report (above referred to) referred to the proposals in respect of Area 6, now with the benefit of the proposed s106 Agreement, involving pumping to the main sewer being superseded by gravity foul line connection to the existing main foul sewer. Mr Williams, the Director of Technical Services for the Defendant, in his witness statement of 10 January 2013 states:
"8. If the site had never been developed and was a Greenfield site the expected maximum run off rates would be 6.4 litre per second for the Average Annual Maximum and 15 litres per second respectively for the 1% Annual Probability. Therefore even if the site had never been developed there would still have been runoff onto Mrs. Thomas' land."
34. I am satisfied that the Defendant was entitled to conclude not simply that there was no likelihood of any significant adverse affects on the environment from the planning permission for Area 6, but that the grant of the permission, with the conditions and the accompanying s106 Agreement, would lead to a distinct improvement (by way of planning gain) in respect of the likely effects on the environment resulting from (in particular) Area 5 of the Former Colliery site. Whether I apply the test, for which Ms Douglass contends, by reference to a straightforward reading even of Paragraph 13 of Annex II of the Directive, and not following in terms the words of Collins J or the new 2011 Regulations as they apply in England, and even by reference to the question as posed by Collins J, I do not conclude that the Defendant erred in law in failing to carry out a comprehensive EIA screening prior to the grant of the now challenged planning permission.
The Conditions Argument
35. As can be seen above, the grant of planning permission by the Defendant was conditional, as is permitted pursuant to s72 of the 1990 Act. Dr Stookes has two separate but interlocking arguments:
i) that condition 3(ii) is unlawful, because it leaves it open to the Defendant to consent to a change which might constitute a material change of user otherwise requiring planning permission, thus avoiding the requirements of advertisement and consultation consequent upon a fresh application by the interested party (the "Tailpiece Argument").
ii) that there was an obligation upon the Defendant to consult with the Claimant prior to imposing Conditions (i), (iii) and (vi), i.e. such that permission should not have been granted without such prior consultation (the "Consultation Argument").
36. Both these arguments appear also to interrelate with the Lebus argument which I have set out above, namely that the Defendant was not entitled to grant permission without having carried out an EIA screening, rather than imposing such condition, an argument which I have concluded not to prevail here.
37. I deal first with the Consultation Argument. Dr Stookes draws support for his argument from the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice and Environmental Matters of 25 June 1998, mainly Article 6, "Public Participation in Decisions in Specific Activities", which provides by Article 6(10):
"10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate."
38. He accepts that he has no decided authority in this court or in the European Court to support his submission. He submits that, because of the Defendant's knowledge of the Claimant's concern as objector, the contents of the ADAS Report and the Ombudsman's finding, the Defendant ought to have consulted her before granting conditions which provided for the Defendant's approval. The Defendant submits that the landscaping provision is normal, if not standard, and that the other conditions, relating to the petrol interceptors and surface water drainage properly arise directly out of the Defendant's own concerns, informed by the Claimant's objections.
39. I am wholly unpersuaded by the Claimant's arguments:
i) The Claimant does not suggest mala fides on the part of the Defendant, which was and will be acting in the public interest in addressing the conditions.
ii) It is difficult to see what would be achieved by yet further consultations. If the Claimant were given further opportunity to be consulted and did not agree, what would be the effect? Plainly not a veto.
iii) It is common ground that it is not lawful for conditions to be imposed on a grant of planning permission conditional upon the consent or approval of a third party (such as the Claimant).
iv) As it happens, the Environment Agency, which is a statutory consultee to the planning application, has been extensively involved, and has been satisfied with the proposals (see the statement dated 10 January 2013 from Mr LeRoux, Senior Environment Officer of Environment Agency Wales).
40. If there were any such duty upon a council as is suggested, the planning system would become even more cumbersome.
41. I turn to the "Tailpiece argument". This arises out of the fact that it is, at least in theory, the case that intensification in existing use can be found to be a material change of use, although, as discussed by Ouseley J in Hertfordshire County Council v The Secretary of State for Communities and Local Government  EWHC 277 (Admin) at paragraph 44 (by reference to Brookes and Burton Ltd v The Secretary of State for the Environment  1WLR 1294), no reported case in which such has been found is known. In R (on the application of Mid Counties Cooperative Ltd) v Wyre Forest DC  EWHC 964 (Admin), Ouseley J concluded that what he called a "tailpiece" to one of the conditions, which gave the district council the power to vary the upper limits of gross external and net retail sales floor space in writing amounted to a side-stepping of the statutory process for the grant of permission and variation of conditions (see paragraphs 66 to 68 of the judgment) and he excised, in the sense of severed, that tailpiece. In R (on the application of Warley) v Wealen DC  Env LR 4, Rabinder Singh QC reached a similar conclusion about a clause which allowed the defendant to extend the hours of floodlighting for which permission was being given, and the judge quashed the permission.
42. The explanation given by the Defendant is that condition 3(ii), far from being detrimental to the Claimant (or to the Defendant itself) is beneficial. It does not, nor is intended to, permit a material change of user without making application for planning permission, which would be unlawful. What it does is impose on the Interested Party an obligation not to make any change, even one short of a material change of user, without the Defendant's permission. The clause ought to be construed so as to be lawful, on the basis of the presumption omnia praesumuntur rita esse acta.
43. I have concluded that in the light of the approach adopted by Ouseley J and Rabinder Singh QC, notwithstanding the fact that in practice the tailpiece could not be used as a way to evade the need for an application for change of user if there were a material change, such as, for example, an increase in the number of coaches to be parked on the site, the risk of uncertainty in relation to the construction of the condition, coupled with the question as to whether it is a necessary condition, leads me to err on the side of caution. It is plainly not even arguable - and Dr Stookes did not seek to suggest - that the existence of Condition 3(ii) renders the whole permission unlawful or void. I shall take the same course as Ouseley J, and sever it by deletion.
44. I turn finally to the Water Drainage Scheme argument.
45. This arises out of the fact that the Defendant, by letter dated 16 June 2010 to the Claimant's solicitors, addressing what was then a draft Condition 6 in the then anticipated conditions proposed for the planning permission if such were subsequently granted, wrote as follows:
"However, as previously explained, these issues will be addressed in the drainage scheme that the developer is required to submit to the Authority in compliance with condition 6. The Authority acknowledges that condition 6 will need to be amended so as to require the developer to submit further details for a surface water drainage system. As you will be aware, the Head of Planning has delegated authority to amend planning conditions. I would point out that the formal letter of approval for planning permission has not yet been issued."
46. This was because in the then draft the word "surface" had admittedly been omitted. The substance however is that the Claimant contends as a result that she thereafter legitimately expected that the condition once incorporated in its final form would provide for the need for the developer to submit details for a surface water drainage system, and not simply, as in the event ensued, a condition for provision for approval of "a scheme for the monitoring of surface water drainage and, if necessary in the opinion of the Local Authority following such monitoring, works for its control and disposal". A material consideration, namely the need to take into account the position of the Claimant was thus omitted and, irrespective of consultation by reference to Article 6 of the Aarhus Convention, with which I have already dealt, the Claimant submits that her legitimate expectations should have been met. Dr Stookes refers to R v North and East Devon Health Authority ex p. Coughlan  QB 213 CA at paras 59-82.
47. It is to be noted that there was a considerable passage of time between 16 June 2010 and April 2012 when permission was granted. During that period, there was plainly careful consideration, not only by the Ombudsman, but also by the Planning Inspector, and by the Defendant and its advisers. It is plain from the evidence of Mr Williams that there was detailed thought as to the need for steps to be taken in relation to surface water, and that such steps were taken or were sufficiently considered. I conclude that any legitimate expectation the Claimant had was limited to her complaints and objections being taken into account, and steps being taken to ensure that the planning permission granted was lawful. In the event, the Defendant reasonably concluded that all that was now necessary was for monitoring to be carried out, and that only if such monitoring showed the need for further steps to be taken would there then be a requirement as set out in condition 3(vi) for works to be carried out as approved by the Defendant.
48. I do not conclude that the Claimant has established a legally enforceable legitimate expectation such as to render the condition 3(vi) in fact imposed unlawful or unreasonable.
49. Save therefore as to the excision of condition 3(ii), I refuse the application.
MR JUSTICE BURTON: Yes?
MS DOUGLAS: (Inaudible) there remains the (inaudible) award of costs, because of course (inaudible).
MR JUSTICE BURTON: Yes. I have forgotten what the limit is.
MS DOUGLAS: £5,000, to be payable to the local planning authority, our cap being £35,000. We say £5,000 does not go to anywhere near the costs of the local planning authority, but --
MR JUSTICE BURTON: No. You have not served a schedule, have you? I do not --
MS DOUGLAS: No, we have not - oh, in fact, yes, we have. It was on the back of the -
MR JUSTICE BURTON: You are quite right.
MS DOUGLAS: It is on the back of --
MR JUSTICE BURTON: It came in today.
MS DOUGLAS: It did, indeed.
MR JUSTICE BURTON: Tell me how much it was.
MS DOUGLAS: It was £23,070.
MR JUSTICE BURTON: Yes. Well now, remind me where I find the limiting order.
MS DOUGLAS: It is the order of (inaudible), it is page 59.
MR JUSTICE BURTON: Thank you. Yes, so the liability is capped at £5,000.
MS DOUGLAS: It is, yes.
MR JUSTICE BURTON: Yes. So even if there were to be some allowance for the fact that you did not succeed on condition 3(ii), that would only have been a small part of the matter. You are plainly entitled to considerably more than £5,000 on an assessment, if that were to have taken place?
MS DOUGLAS: Indeed, and of course we did even in our skeleton express our view that if it was only down to about 3(ii), it should be severed.
MR JUSTICE BURTON: Yes, what is your position?
MR BLAKEMORE: The position on behalf of the Interested Party, it is likely to seek costs, albeit it is not subject to any protective costs order. The Interested Party was not playing an active role in the proceedings with the benefit of representation.
MR JUSTICE BURTON: No. How do you I say I deal with that? I mean, plainly if you have taken part, you have not filed an Acknowledgment of Service --
MR BLAKEMORE: At that stage --
MR JUSTICE BURTON: -- at that stage, and so there was no way in which the learned judge could know anything about you.
MR BLAKEMORE: No, save that we were on the claim form, and noted as being an Interested Party from the start.
MR JUSTICE BURTON: Yes, so you say the claimant should have taken precautionary measures, in case you popped up. Alternatively, when you did pop up, they could and should have applied at that stage.
MR BLAKEMORE: Yes.
MR JUSTICE BURTON: I have not heard Dr Stookes, but what is the consequence of that? The claimant only has to pay £5,000 to the defendant. What do you submit you should be paid?
MR BLAKEMORE: Well, there has been no order --
MR JUSTICE BURTON: Yes, yes, well what is the consequence?
MR BLAKEMORE: The consequence, I submit, would be that the costs would be payable as assessed.
MR JUSTICE BURTON: And what are your costs?
MR BLAKEMORE: A schedule has been drawn today in the sum of £14,500.
MR JUSTICE BURTON: 14.
MR BLAKEMORE: And the defendant's position, well, we have seen the defendant's figures --
MR JUSTICE BURTON: Well, you are perfectly entitled to defend your corner, and of course you did put in the statement, albeit rather late, so that if I had been on the verge of considering quashing the permission, I might have taken into account your detriment at that stage. Well, I did not get anywhere near that. So you did at least put a bit of evidence forward --
MR BLAKEMORE: Yes.
MR JUSTICE BURTON: -- but you did not add anything to the argument. Should you have any costs, or all your costs, or only some costs, or what?
MR BLAKEMORE: I submit the costs should follow. The importance of the Interested Party's position was to ensure that the court, as was noted I think in the judgment, was aware that the Interested Party was playing an active role and was not in the pocket of Carmarthenshire County Council --
MR JUSTICE BURTON: Yes.
MR BLAKEMORE: -- but had different and legitimate and proper interests in the case. Secondly, there is the evidence that goes to relief generally, and whilst largely this is supportive of Carmarthenshire's position, we have played an active role in terms of ensuring --
MR JUSTICE BURTON: What part of your £14,000? I do not know whether you have the schedule which would tell you, related to (a) your evidence, and (b) your skeleton?
MR BLAKEMORE: It is not broken down that much. There is a schedule that has been drafted today.
MR JUSTICE BURTON: Well, shall I see the schedule? Have you seen this, Dr Stookes?
DR STOOKES: No, my Lord I have not. I do strongly oppose this. It is wholly exceptional that an Interested Party should --
MR JUSTICE BURTON: Well, we will hear in due course. I just want to know whether you have seen this --
DR STOOKES: I have not received it, and I was not -- the first that we were aware that the Interested Party were taking any active role was in December of --
MR JUSTICE BURTON: Yes, thank you very much. Right.
MR JUSTICE BURTON: Yes. There is nothing relating to the preparation of the witness statement, is there?
MR BLAKEMORE: Not specifically. It is within the hours that those instructing me have put into the case, and plainly there would have been necessary consideration of all of the documentation, in order to deal with that.
MR JUSTICE BURTON: Yes.
MR BLAKEMORE: Thereafter, the drafting, which albeit is a short statement, it is I hope helpfully short in --
MR JUSTICE BURTON: Well, I will hand this down, thank you very much. Right. Anything else you want to say?
MR BLAKEMORE: I do not think there is anything else that I can say, my Lord.
MR JUSTICE BURTON: Now, Dr Stookes, yes?
DR STOOKES: Yes.
MR JUSTICE BURTON: First of all the defendant.
DR STOOKES: The defendant, I would not resist an order, particularly albeit that we have the excision of 3(ii), there is a costs cap of £5,000 and I recognise that, so I would not resist that.
MR JUSTICE BURTON: Well, that is that. And how long do you want to pay?
DR STOOKES: My Lord, I would ask for 28 days on that payment.
MR JUSTICE BURTON: Is that all right? Yes. Now, what about the Interested Party?
DR STOOKES: The Interested Party, we were first aware on 11 December that they were taking an active part. They provided, we would say, nothing material to the --
MR JUSTICE BURTON: Well, brought to the party.
DR STOOKES: They had not brought anything to the party, my Lord, and that is reflected in the judgment. It is wholly exceptional, anyway, to pay two --
MR JUSTICE BURTON: Yes, well I mentioned their evidence because it might have become relevant, and of course the fact that they were here showed that the defendant was not alone, which is sometimes of some significance.
DR STOOKES: The primary --
MR JUSTICE BURTON: You began by saying that it is rare. I do not think it is rare to award costs in favour of Interested Parties.
DR STOOKES: In our experience, in my experience it is.
MR JUSTICE BURTON: Really? Well, I suspect your experience is greater than mine, but my experience is not wholly limited. I think I ordered costs only last week in Cardiff in favour of an Interested Party.
DR STOOKES: My Lord --
MR JUSTICE BURTON: But the Interested Party very often plays a rather larger part than it did now, in this one.
DR STOOKES: Indeed, my Lord, though the overriding concern is that a protective costs order, the principle of a protective costs order is to ensure that the proceedings are not prohibitively expensive.
MR JUSTICE BURTON: Yes.
DR STOOKES: That is found -- the general principle of a protective costs order was down by --
MR JUSTICE BURTON: Well, the principle is there, which was accepted. But you could have made an application, could you not, when the Interested Party came alive -- when was the Acknowledgment of Service?
DR STOOKES: It was 11 January, my Lord.
MR JUSTICE BURTON: This year?
DR STOOKES: Yes. Three weeks ago.
MR JUSTICE BURTON: So did they permission to serve it out of time?
DR STOOKES: No, my Lord, these were our first points, and on preliminary points, while the video link --
MR JUSTICE BURTON: Yes.
DR STOOKES: -- it was our concern that they had not applied for permission, or received permission --
MR JUSTICE BURTON: If they had received permission, then you say it would have been on terms of joining in with the costs order?
DR STOOKES: On that basis, my Lord. Indeed there was no application for permission for either the evidence or the Acknowledgment of Service, or to join the party.
MR JUSTICE BURTON: Is that not your answer? There was no permission. Had they sought permission, it would likely have been on the basis of a protective costs order. Now the question is, what would that protective costs order have been, if they had applied in December, and they basically said, "We want to be there, in order to put in our evidence about the detriment?"
DR STOOKES: My Lord, we would say that the general principle is that at the time that the order was made by HHJ Vosper, there was only one party that was active --
MR JUSTICE BURTON: Well, that is right. But the fact is that things changed thereafter, and it is right of course, is it not, there is no protective order in your client's favour in respect of the Interested Party. You are going to show me something in the White Book?
DR STOOKES: I am hoping to, but I do not have it in front of me, but --
MR JUSTICE BURTON: Well, give me your best recollection of it.
DR STOOKES: My recollection is that in certainly a case such of this, that it is exceptional that the Interested --
MR JUSTICE BURTON: Well, I do not think there is anything like that. If you want to find that, you had better do so. It is exceptional that costs should be ordered in favour of the Interested Party? It does not ring a bell to me.
DR STOOKES: My Lord, I will come back to that. Our primary submission is they should not be entitled to costs, and that they are not -- we were not put on notice. We have not received any costs, so we unable to assess it.
MR JUSTICE BURTON: Oh yes, I am just speculating. I think at the end of day, the basis on which a fair result could be achieved, what would have happened if they had applied for permission, and they said, "And the reason we want to come in is to put in evidence on detriment?
DR STOOKES: My Lord, we would have resisted that, and we would have kept the cap at the same amount, because the principle is on HHJ Vosper, is it usually --
MR JUSTICE BURTON: The principle is?
DR STOOKES: The principle is that the purpose of a protective costs order is to ensure that those costs for the proceedings are not prohibitively expensive.
MR JUSTICE BURTON: Well, yes. Yes, thank you. Anything else?
DR STOOKES: On costs, there is not, no.
MR JUSTICE BURTON: Right, what do you say?
MR BLAKEMORE: All I can say in response is that plainly this was a party that was directly affected by the decision.
MR JUSTICE BURTON: Yes.
MR BLAKEMORE: It is only right that that party is able to be represented at a hearing such as this, which fundamentally affects its business. In those circumstances, it was realistic and very reasonably foreseeable that it would play a part. The fact that there has only been a short period of time within which the involvement has formally come about in terms of representation limits the amount of costs that has been incurred, because there has only been a few weeks in order to pull everything together from the Interested Party's perspective by the lawyers in the case. They could become involved an awful lot earlier, in which case it would have undoubtedly led to, in my respectful submission, an increase in the level of the protective costs order, had that been considered at that stage.
MR JUSTICE BURTON: Thank you. So far as costs is concerned, the defendant has succeeded, and would be entitled to its costs, possibly subject to some deduction or offset of a very minor variety in respect of 3(ii), but its costs as incurred are way over the costs cap which is by order of the judge who gave permission, HHJ Vosper, to be applied, and consequently I make the order limited to the cap in the claimant's favour, which is not resisted by Dr Stookes, of £5,000.
So far as the Interested Party is concerned, plainly an Interested Party, concerned as it is in this matter, is entitled to attend. There are two unusual factors here. One is that they did not do so until relatively recently, and would have needed to have applied for permission to put in an Acknowledgment of Service out of time, although no doubt it would have been granted had it been sought. But secondly, that probably for that very reason, neither the Interested Party nor the claimant ever addressed the question, or asked a judge to address the question, as to whether the protection of the costs capping, which was extended to the claimant by virtue of the order of HHJ Vosper as against the defendant, should be extended to the Interested Party. I do not consider that it follows, as counsel has put to me on behalf of the Interested Party, that is Mr Blakemore, that as there is no cap therefore the costs should be unlimited, not only because that seems to me to be unfair and irrational in the light of the history that I have just referred to, but also because it would lead to the most extraordinary and unbalanced result that the defendant, who had done effectively all the work, should be limited to £5,000 - (audio ends abruptly).