R (Sandra and John Hockley) v Essex County Council

Transcript date:

Friday, December 20, 2013

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Mr Justice Lindblom

Transcript file:

ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 December 2013

Before :

Mr Justice Lindblom
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Between :

John and Sandra Hockley
Claimants
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Essex County Council
Defendant
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Uttlesford District Council
Interested Party

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Mr Paul Stookes (instructed by Richard Buxton Environmental & Public Law Solicitors) for the Claimants
Mr Paul Shadarevian and Ms Clare Parry (instructed by Essex Legal Services) for the Defendant

Hearing dates: 29 and 30 October 2013 
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Judgment Approved by the court
for handing down
(subject to editorial corrections)

Mr Justice Lindblom:

Introduction

1. This claim for judicial review challenges the planning permission granted by the defendant, Essex County Council ("the County Council"), in June 2012, for a waste transfer station on a site in Great Dunmow. The application had been made by the County Council itself, as waste disposal authority. The claimants, John and Sandra Hockley, live near the site. They objected to the proposal. They say it ought to have undergone environmental impact assessment ("EIA"). They also contend that when the County Council determined the application it misapplied relevant policy in the development plan. The interested party, Uttlesford District Council ("the District Council"), which is the waste collection authority, has taken no part in the proceedings.

2. Permission to apply for judicial review was granted by Miss Belinda Bucknall Q.C., sitting as a deputy High Court judge, on 28 January 2013. In granting permission she said that in her view the claim could not be dismissed as unarguable. She ordered that it be joined with a previous one (CO/6123/2010), in which Mr and Mrs Hockley had challenged the planning permission granted by the County Council in March 2010 for the development of a resource management centre on land including the site of the development to which these proceedings relate. In that case, however, the County Council submitted to judgment in February 2013 and the planning permission for the resource management centre was quashed.

The issues in the claim

3. Mr and Mrs Hockley now pursue only two of the original grounds in their claim, grounds 1 and 5. These raise two main issues:

(1) whether the County Council erred in law in its approach to screening the development under the regime for environmental impact assessment ("EIA") (ground 1); and

(2) whether the decision to grant planning permission as a departure from Policy GD8 of the Uttlesford Local Plan was unlawful (ground 5).

4. In the skeleton argument of Mr Paul Stookes, who appeared for Mr and Mrs Hockley, and in the witness statement of their solicitor, Mr Richard Buxton, dated 21 October 2013, the contentions made in support of ground 1 of the claim were enlarged to include further submissions about cumulative effects. Mr Paul Shadarevian, who appeared for the County Council, pointed out that permission to apply for judicial review had not been granted for the claim in this expanded form, and that no application to amend had been made. He was right. However, he said he was able to respond to the new points raised and did not in the end seek to dissuade me from dealing with them. I shall do so.

5. After the hearing the parties made further submissions in writing in the light of the judgment of Lang J. in Mackman v Secretary of State for Communities and Local Government [2013] EWHC 3396 (Admin), which was handed down on 7 November 2013. I have been told that an application for permission to appeal to the Court of Appeal has been made in that case.

Background

6. The land on which the development was proposed is at Chelmsford Road to the south of the town. It is a site of 0.84 hectares. To its south is the A120 trunk road. To the east there is an ambulance station, and on Chelmsford Road Mr and Mr Hockley's home, Brook Cottage, and a pair of semi-detached houses called Hoblongs Cottages. To the north, separated from the site by a brook, are a Travelodge hotel and the Hoblongs Industrial Estate. The site was once farmland, but when the A120 was being constructed it was used, together with land to its west, as a contractor's compound. The land further to the west is still farmland.

7. With adjoining land the site has a history of proposals for waste facilities, which goes back to May 2000. It is part of the area allocated in the Uttlesford Local Plan 2005 for the development of a "civic amenity site and depot". The relevant policy is Policy GD8, which states:

"A 1.83 hectare site to the south of the Hoblongs industrial estate is proposed for a civic amenity site and depot. Proposals should include landscaping adjacent to the neighbouring properties and the A120 bypass. Any proposal must be subject to a Traffic Impact Assessment."

8. On 2 March 2010 the County Council granted planning permission for the development described in the decision notice as:

"Change of use of land to the rear of the Ambulance Station, off Chelmsford Road, Great Dunmow, to a Resource Management Centre comprising a recycling centre for household waste, to include the siting of storage containers and recycling facilities, a waste transfer/bulking station for mixed and source separated municipal and trade waste, [including] refuse collection vehicle parking provision ...".

9. As I have said, that planning permission was challenged in a claim for judicial review. One of the grounds in that claim was that the County Council had failed to identify the proposal as a departure application under the relevant statutory provisions. This was the ground on which the County Council eventually submitted to judgment on 18 February 2013.

10. In September 2010 the County Council abandoned the proposal for the recycling centre for household waste, which had been one element of the proposals approved in March 2010. It now prepared a different scheme, which is the development with which these proceedings are concerned. The development now proposed does not include a recycling centre, or parking for refuse collection vehicles.

11. When the County Council's Development and Regulation Committee met on 22 June 2012 to consider the application, the Head of Environmental Planning described the proposal, in section 2 of his report, as being for "a Waste Transfer Station with a proposed capacity of 29,400 tonnes of municipal and trade waste per annum, broken down into an estimated 13,600tpa of residual waste, 2,400tpa of trade waste, 4,200tpa of food waste and 9,200tpa of dry recycling waste", with an average daily throughput of 113 tonnes. This, he said, "would form part of the delivery of an integrated network of new waste facilities to manage municipal waste across Essex" and "would allow for the separate receipt and bulking of food, dry recycling and residual waste from the Uttlesford area for subsequent transport to waste treatment facilities across the County".

12. The officer told the committee that the waste would be delivered by "refuse collection vehicles (RCVs) and other municipal vehicles". These would come to the site "via the access road (shared with the ambulance station and Brook Cottage) off Chelmsford Road via the B184 and the B1256". The "maximum traffic generation on any one day would be 74 vehicle movements (37 in, 37 out) per day". All of the "waste handling activities" would be undertaken inside the building. No processing of waste was proposed. The waste transfer station would operate between 7 a.m. and 5 p.m. on Monday to Friday, and between 9 a.m. and 5 p.m. on Saturdays, and not at all on Sundays and Bank Holidays. The existing access road from Chelmsford Road was to be resurfaced and extended beyond the ambulance station.

13. The officer explained how this proposal differed from the previous one:

"The current application differs from the previous permission ... in that it doesn't include [a] Recycling Centre for Household Waste (RCHW) or overnight parking for refuse collection vehicles. The decision not to continue with the RCHW was taken by ECC in consultation with [the District Council], due to the achievement of increased household waste recycling rates and improvements made to other recycling facilities in the vicinity, for example at Saffron Walden and Springwood Drive, Braintree. The kerbside recycling service has also been expanded within the Uttlesford district."

Issue (1) - EIA

The EIA regime

14. Article 2(1) of Directive 2011/92/EU ("the EIA directive") requires Member States to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment are made subject to an assessment of their effects. For projects listed in Annex II, Article 4(2) requires Member States to determine whether the project is to be made subject to EIA either through case-by-case examination or by the use of thresholds or criteria set by the Member State. Annex III sets out the relevant selection criteria.

15. In Commission v Italy [2004] E.C.R. I-5975 the European Court of Justice held (in paragraph 44 of its judgment) that "whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the [EIA directive], which is that no project likely to have significant effects on the environment, within the meaning of the [EIA directive], should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive screening, be regarded as not being likely to have such effects ...".

16. The requirements of the EIA directive have been transposed into domestic law by regulations: most recently, with effect since 24 August 2011, the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 EIA regulations").

17. Under regulation 3(4) of the 2011 EIA regulations a local planning authority may not grant planning permission for "EIA development" unless before doing so it has "taken the environmental information into consideration ...".

18. "EIA development" is defined in regulation 2(1) as either Schedule 1 development or "Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location".

19. Regulation 4 provides, in effect, that a "screening opinion" adopted by a local planning authority will determine whether or not development is EIA development. Regulation 2(1) defines a "screening opinion" as "a written statement of the opinion of the relevant planning authority as to whether development is EIA development". Regulation 4(6) provides that where a local planning authority has to decide whether Schedule 2 development is EIA development it "shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development". Regulation 4(7) provides that, where a local planning authority adopts a screening opinion under regulation 5(5), the screening opinion must be "accompanied by a written statement giving clearly and precisely the full reasons for that conclusion".

20. Schedule 2 to the 2011 EIA regulations includes in paragraph 11 b) of column 1 "Installations for the disposal of waste (unless included in Schedule 1)". For development of that description the applicable thresholds and criteria in column 2 are:

"(i) The disposal is by incineration; or
(ii) the area of the development exceeds 0.5 hectare; or
(iii) the installation is to be sited within 100 metres of any controlled waters".

21. Schedule 3 contains the "Selection criteria for screening Schedule 2 development", namely "1. Characteristics of development", "2. Location of development" and "3. Characteristics of the potential impact". It provides:

"1. Characteristics of development

The characteristics of development must be considered having regard, in particular, to -
(a) the size of the development;
(b) the cumulation with other development;
...
(e) pollution and nuisances;
...

2. Location of development

The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to - 
(a) the existing land use;
...

3. Characteristics of the potential impact

The potential significant effects of development must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to -
(a) the extent of the impact (geographical area and size of the affected population);
...
(c) the magnitude and complexity of the impact;
(d) the probability of the impact;
(e) the duration, frequency and reversibility of the impact."

Domestic jurisprudence on screening

22. There is now a large amount of case law on the approach a local planning authority should take to the screening of proposed development.

23. In R. (on the application of Jones) v Mansfield District Council [2004] Env. L.R. 21 Carnwath L.J., as he then was, emphasized (in paragraph 58 of his judgment) that "the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle race", and that "it does not detract from the authority's ordinary duty, in the case of any planning application, to inform itself of all relevant matters, and take them properly into account in deciding the case."

24. In R. (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 Moore-Bick L.J. said (in paragraph 20 of his judgment) that it was important to bear in mind "the nature of what is involved in giving a screening opinion". A screening opinion, he said, "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 require "a full assessment of any identifiable environmental effects". What is involved in a screening process is "only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all". The court should not, therefore, impose too high a burden on planning authorities in what is simply "a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment ...". In the light of the decision of the European Court of Justice in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Lnadbouw, Natuurbeheer en Visserij [2004] E.C.R. I-7405 and the Advocate General's opinion in R. (on the application of Mellor) v Secretary of State for Communities and Local Government [2010] Env. L.R. 18 Moore-Bick L.J. said (in paragraph 17 of his judgment) that a likelihood in this context was "something more than a bare possibility ... though any serious possibility would suffice".

25. In R. (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869, Pill L.J., with whom Toulson and Sullivan L.JJ. agreed, said (in paragraph 31 of his judgment) that there was "ample authority that the conventional Wednesbury approach applies to the court's adjudication of issues such as these". That principle is firmly established in the domestic jurisprudence. For example, in R. (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114) Beatson L.J. said (in paragraph 22 of his judgment) that the "assessment of the significance of an impact or impacts on the environment has been described as essentially a fact-finding exercise which requires the exercise of judgment on the issues of "likelihood" and "significance"" (see also paragraph 40 of Laws L.J.'s judgment in Bowen-West v Secretary of State [2012] EWCA Civ 321). In Jones v Mansfield Carnwath L.J. said (at paragraph 61) that because the word "significant" does not lay down a precise legal test but requires the exercise of judgment on planning issues and consistency in the exercise of that judgment in different cases, the function is one for which the courts are ill-equipped.

26. In Evans the Court of Appeal had to consider, among other things, an argument that in screening cases a heightened standard of review should apply, rather than the conventional Wednesbury approach. Several reasons were put forward for this argument, including the views of the Aarhus Convention Compliance Committee, the principle of proportionality and the prospect of fundamental rights being violated (see paragraphs 32 to 43 of Beatson L.J.'s judgment). That argument was firmly rejected. Beatson L.J. said (in paragraph 42) that the Aarhus Convention Compliance Committee had "made no decision and has only expressed concerns". The question counsel was asking the court to consider and to refer to the Court of Justice of the European Union had been considered by the court on a number of occasions, both before and after the emergence of the Public Participation Directive. The court had decided that "the standard of review is to be the familiar common law Wednesbury standard". Beatson L.J. said this "was also the position of the [Court of Justice of the European Union] in 2006"; that "the recent cases are all post-Article 10 and post-Waddenzee"; and that in the light of Waddenzee the court had given "no indication that it puts into question the Wednesbury approach to review". He added (in paragraph 43) that, in the absence of "any European jurisprudence taking or favouring an approach that differs from the standard common law approach to judicial review including the different strands of the Wednesbury test", a reference to the Court of Justice of the European Union was not justified.

27. It will sometimes be necessary for the court to consider whether a series of proposals are being used to exclude a larger project from the EIA regime. This mischief is generally referred to as "project splitting" or "salami slicing". In Bowen-West Laws L.J. endorsed (in paragraph 25 of his judgment) the conclusion of the judge below that the development in question was "not in truth one integrated development" - such as the Carlisle Airport development in Brown v Carlisle City Council [2010] EWCA Civ 523, or the Madrid Ring Road project in Ecologistas en accion-Coda v Ayuntamiento de Madrid [2009] PTSR 458, or the Mediterranean Corridor rail project in Commission v Spain [2004] E.C.R. I-08253. The main question in the case, he said, was whether the Secretary of State ought to have concluded that the largest of the schemes involved indirect, secondary or cumulative effects of the proposal he was considering. This was "[first] and foremost ... an issue of fact", requiring "the application of a measured judgment to the evidence" (paragraph 28). If permission for the larger scheme were sought the whole development would be the subject of an EIA, and the purpose of the EIA directive would thus be fulfilled (paragraph 35).

28. In Boggis v Natural England [2009] EWCA Civ 1061, a case in which the Court of Appeal had to consider the operation of article 6(3) of the habitats directive, Sullivan L.J. said (in paragraph 37 of his judgment) that a breach of article 6.3 is not established merely because, sometime after the plan or project has been authorized, a third party said there was a risk of a significant effect on the protected site that should have been considered. Whether a breach of article 6.3 was alleged in infraction proceedings or in a domestic challenge, a claimant who said there was such a risk "must produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered."

Circular 02/99

29. Circular 02/99 provides the Government's guidance on EIA. On the screening process the circular emphasizes, in paragraph 34, that the number of cases of EIA development "will be a very small proportion of the total number of schedule 2 developments". Paragraphs 45 and 46 of the circular, under the heading "Applying the guidance to individual development", state:

"45. In general, each application (or request for an opinion) should be considered for EIA on its own merits. The development should be judged on the basis of what is proposed by the developer.

46. However, in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or approved development. There are occasions where the existence of other development may be particularly relevant in determining whether significant effects are likely, or even where more than one application for development should be considered together to determine whether or not EIA is required."

30. Annex A to the circular contains "Indicative Thresholds and Criteria for Identification of Schedule 2 Development Requiring EIA". On "Installations for the disposal of non-hazardous waste" paragraph A36 says:

"The likelihood of significant effects will generally depend on the scale of the development and the nature of the potential impact in terms of discharges, emissions or odour. For installations (including landfill sites) for the deposit, recovery and/or disposal of household, industrial and/or commercial wastes ... EIA is more likely to be required where new capacity is created to hold more than 50,000 tonnes per year, or to hold waste on a site of 10 hectares or more. Sites taking smaller quantities of these wastes, sites seeking only to accept inert wastes (demolition rubble etc.) or Civic Amenity sites, are unlikely to require EIA."

The European Commission's guidance

31. The European Commission has issued several guidance documents on EIA. Some of the guidance is relevant specifically to screening. The document entitled "Guidance on EIA Screening", published in 2001, contains a checklist of information needed for screening. This includes, under the heading "Characteristics of the project", "[the] relationship with other existing/planned projects" (in section B4, "Case-by-Case Screening Tools"). The document entitled "Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions", published in 1999, gives several examples of cumulative impacts (in section 2). These include "incremental noise from a number of separate developments", and several developments that have "insignificant impacts individually but ... together have a cumulative effect ...". The document entitled "Interpretations of definitions of certain project categories", published in 2008, gives advice on the "Exclusion of salami-slicing (project splitting)" (in section 1.2). This refers to the case law of the European Court of Justice on "the practice of splitting projects into sub-projects so that each of these fall below screening thresholds or criteria and therefore avoid the obligation to undergo an EIA". It cites the decision of the court in Commission v Spain.

"The Aarhus Convention: An Implementation Guide"

32. The second edition of the guidance document on the implementation of the Aarhus Convention, issued by the United Nations Economic Commission for Europe ("UNECE") in 2013 ("The Aarhus Convention: An Implementation Guide"), states that the "test of significance [of an effect on the environment] should be applied objectively and not in a manner to avoid public participation".

The request for a screening opinion

33. On 9 November 2011 AMEC Environment & Infrastructure UK Ltd. ("AMEC") wrote to the County Council's Minerals and Waste Planning Development Management Team on behalf of the County Council as waste disposal authority, requesting a screening opinion for the proposed waste transfer station.

34. In their letter AMEC said the site was "brownfield land". They described the proposed development. They explained that there was not going to be any processing of waste, "only temporary storage before onward movement". The estimated maximum throughput would be 29,400 tonnes a year. The waste handling would be "fully enclosed within [the] building". The operating hours would be 7 a.m. to 5 p.m. on weekdays, and 9 a.m. to 5 p.m. on Saturdays.

35. AMEC referred to the Government's guidance on EIA in Circular 02/99. They accepted that the development was Schedule 2 development, within paragraph 11 b), on a site whose area exceeded 0.5 hectare. No other threshold or criterion in column 2 of Schedule 2 applied. The site was not in a "sensitive area" as defined in regulation 2(1). Applying the selection criteria in Schedule 3, AMEC said this:

"It is our view that the proposed development is not likely to have significant environmental effects. The nature of the development is a transfer facility only which does not involve any waste processing or treatment. It is of modest scale, and the site is not subject to sensitive environmental designations. AMEC has given preliminary consideration to potential environmental impacts, as set out as an attached appendix, and believe that whilst there is the potential for some localised environmental impacts arising from the proposed development these can be satisfactorily addressed through appropriate mitigation measures."

36. In Appendix A to their letter AMEC considered the potential impacts of the proposed development, under the headings "Odour", "Air Quality Impacts", "Bio Aerosols", "Noise" and "Traffic and Transport". As for "Noise", they acknowledged that there were "potential noise related issues arising from the proposed WTS". But they went on to say this:

"Noise emissions from on-site activities such as material drops and vehicle movements during the site's operation could potentially result in increased noise levels at the adjacent residential receptors. However in AMEC's experience such impacts can be reduced through appropriate siting of buildings and their doors as well [as] a scheme of on-site noise management and mitigation techniques such as acoustic barriers."

On "Traffic and Transport" AMEC said this:

"The site is accessed via a private road, via the truncated section of Chelmsford Road off the B184. The turning radius at the junction from the private road onto the truncated road section is limited. The proposed development may require improvements to the site access to ensure that articulated vehicles can enter and exit the site safely.

Table A.1 summarises the estimated traffic generation of the proposed Waste Transfer Station. The site will receive dry recyclables, food and residual waste. The District Council will be operating an alternate weekly collection system such that food waste and recyclables is collected one week and food waste and residual waste the second week. ...".

37. The tables showing the estimated traffic generation for each alternate week gave the total number of daily vehicle movements in and out of the site as, respectively, 74 (64 HGVs and 10 non-HGVs) and 66 (56 HGVs and 10 non-HGVs). Another table showed the peak hour traffic generation of the "resource management centre" for which planning permission had been granted in March 2010, as 164 vehicle movements on weekdays and 306 at weekends. AMEC went on to say:

"Given the location of the site, the estimated traffic generation of the proposed Waste Transfer Station and the site's previous planning history, it is considered that an assessment of potentially significant traffic-related environmental effects is not required. Furthermore, Guidance on Transport Assessment would suggest that a TA would not be required as supporting documentation to a planning application for development on the site. However, following consultation with Essex County Council (as highway authority) a TA is currently being prepared."

38. On 15 November 2011 AMEC were asked to provide more information to support their screening request. They did so on 30 November 2011. They added to what they had already said about the noise likely to be emitted by the operation of the waste transfer station. They identified five potential sources of noise: first, "[vehicles] entering and leaving the site via the existing access road, Chelmsford Road and the A120"; second, "[vehicles] manoeuvring within the site (via the weighbridge) and into/out of the main WTS building"; third, "[the] delivery (tipping) and collection (bulking) of waste materials within the main building"; fourth, "[continuous] operation of an odour extraction fan for the main building stack"; and fifth, "[occasional] vehicle cleaning in the power washing bay". During the construction of the development noise would be created by vehicles and plant.

39. AMEC acknowledged that these activities could result in "increased noise levels at the adjacent residential receptors to the east of the site, at the hotel to the north and possibly at residential properties further from the site, but in close proximity to the site haul routes". However, they said, the proposals were "being formulated with a range of potential environmental measures in mind". They described those measures. They said the "containment of waste tipping/bulking activities within a building" would "help to reduce the potential effects of site operations on the local environment, in terms of both noise and odour/air quality". All activities on the site, including the arrival and departure of waste delivery and collection vehicles, would begin no earlier than 7 a.m. on weekdays and 9 a.m. on Saturdays. The aim was "to avoid [the] night-time noise level of 45 dB LAmax being exceeded at night within any bedrooms by limiting the working hours for the site to outside ... the recognised night-time period". Other "noise mitigation measures" would be considered.

40. AMEC's conclusion was this:

"In summary, it is likely that the development would not give rise to any significant noise impact effects. A detailed noise report will accompany the submission of the planning application and will include the results of the baseline noise monitoring undertaken recently at the site, details regarding the methodology for the prediction of the site noise emissions, the assessment of site noise emissions in accordance with the guidance on industrial/commercial noise emissions affecting existing residential properties, and full details of the proposed environmental noise mitigation measures, including the rationale for their proposal."

The screening opinion

41. The County Council issued its screening opinion on 23 January 2012.

42. The screening opinion began with a series of questions and answers. It said the proposed development was not within Schedule 1 to the 2011 EIA regulations, but fell into column 1 of Schedule 2, under paragraph 11 b) "Installations for the disposal of waste". The site was not in a "sensitive area" as defined in regulation 2. As for the thresholds and criteria in column 2 of Schedule 2, the development would not involve incineration, but its area would exceed 0.5 hectares, and it would be sited within 100 metres of "controlled waters", the Hoblongs Brook. It was therefore "necessary to consider whether there are likely to be significant environmental effects". All of this was consistent with what AMEC had said in their letter of 9 November 2011.

43. The next section of the screening opinion was headed "Are there likely to be significant environmental effects[?]". It quoted paragraph A36 of the Annex to Circular 02/99 on "Installations for the disposal of non-hazardous waste" (see paragraph 30 above). The development "would include the development of a waste transfer building". The main dimensions of that building were given. The "scale of the development [was] such that the annual maximum throughput would be 29,400 tonnes". This was "well below ... 50,000 tpa, thereby indicating that EIA would not normally be required." But the likely composition of waste handled each year - "approximately 16,000 tpa of residual wastes, 4,200 tpa of food waste and 9,200 tpa of dry recyclable waste" - meant that it "would not be solely inert". It was "therefore useful to consider the nature of the potential impact in terms of discharges, emissions and odour ...".

44. Each of those three matters - "discharges, emissions and odour" - was then considered.

45. Under the heading "Discharges" no likely significant effect on the environment was identified. A new surface water drainage system was to be put in place "in accordance with Environment Agency requirements to ensure no significant impact on surface water quality and groundwater".

46. Under the heading "Emissions" the screening opinion said:

"Air quality and noise could be considered as ‘emissions' and have been assessed within the screening application.

Air quality has the potential to be affected as a result of the development. It is noted that the site is not located with an Air Quality Management Area designated by [the District Council].

The applicant proposes that an air quality desktop study would be undertaken as part of any forthcoming application, however it is not anticipated that there would be any significant impacts.

The development would necessitate an increase in the number of vehicle movements at the site, which has the potential to result in an increase in road traffic pollution levels. The estimated number of vehicle movements per day is 74 and 66 in alternate weeks (the first week is food waste and recyclable collections and the second week is food waste and residual waste). It is unlikely that this level of traffic would result in air quality problems, however a Transport Assessment would require as part of any forthcoming planning application so that the vehicle numbers would be certain.

In relation to noise, emissions would arise from vehicle movements, tipping and bulking of waste materials within the building, operation of the odour extraction system and vehicle cleaning, as well as during the construction period.

In order to minimise the impact of noise on surrounding receptors (e.g. the cottages located to the east of the site and the Travel Lodge hotel to the north), all transfer operations are proposed to take place within the building which would have sealed north and east facing façades. All HGV/RCV access points would be located on the western elevation facing away from properties to the east and the doors would be closed unless required for access. It is also proposed that the hardstanding would be located to the west of the building, thereby allowing the building itself to act as a screen for the properties to the east.

It may be necessary for silencers to be installed to control noise from the odour extraction system.

Operating hours are proposed as 0700 hours - 1700 hours on weekdays and 0900 hours - 1700 hours on Saturdays, thereby avoiding the more sensitive ‘night-time' hours.

The applicant has stated that additional noise mitigation measures would also be considered if required."

47. No likely significant effects were identified under the heading "Odour". The conclusions on this matter were:

"The waste would be delivered to site in refuse collection vehicles and immediately placed within a building. The residence time within the building would be minimised and fast acting roller shutter doors would be employed. The building would be kept under negative pressure and odours would be passed to a stack or abatement system to avoid odours escaping to the surrounding receptors (e.g. the cottages located to the east of the site and the Travel Lodge hotel to the north).

Odours associated with the vehicles themselves would be considered to be insignificant due to the transient nature of the vehicles entering and exiting the site."

48. The screening opinion then dealt with "Other non-significant environmental effects".

49. The "Conclusion" at the end of the screening opinion was this:

"Based on the consideration of criteria for section 11 b) and guidance within ... Circular 02/99 and the documents listed in the Annex which have been provided by the applicant it is considered that EIA WOULD NOT BE REQUIRED."

50. The documents in the Annex included the request for the screening opinion in AMEC's letter of 9 November 2011, the additional information submitted by AMEC in support of the screening request on 30 November 2011, the site layout plan and the "Landscape Masterplan" for the development.

The application for planning permission

51. The application for planning permission was made on 9 March 2012. It included a number of documents prepared by AMEC, including a Transport Assessment, a Noise Assessment and an Odour Assessment.

52. Section 4 of the Transport Assessment considered the "Future Year Baseline". It took into account "traffic growth factors specific to Great Dunmow ... in order to determine growth from 2011", both for 2013 and for 2018 (sub-section 4.1).

53. In its "Executive Summary" the Transport Assessment said:

"During the ‘worse case' scenario (i.e. Week 1), the WTS will generate 74 two-way vehicle movements (e.g. 37 arrivals + 37 departures) per day[.] During the ‘worse case' peak hour (i.e. AM peak hour), the WTS is estimated to generate 6 vehicle movements (e.g. 3 arrivals + 3 departures). This figure equates to one vehicle entering or exiting the site every 10 minutes between 08:00 and 09:00. During the ‘worse case' peak for development generated traffic (10:30-13:30 during Week 1) the WTS is estimated to generate 12 vehicle movements (e.g. 6 arrivals + 6 departures) each hour.

In addition, 4 vehicle trips will be generated by staff departures after the WTS closes. Assuming these trips are undertaken during the PM peak, the equivalent of one vehicle exiting the site every 15 minutes is not considered to impact on the operation of the off-site priority junctions during this time.

For comparison, the WTS is estimated to generate significantly less traffic than the previously proposed Resource Management Centre that was granted planning permission in March 2010 and which was estimated to have generated 164 two-way vehicle trips (comprising 82 arrivals + 82 departures) during weekday peak hours."

The "Conclusion" of the Executive Summary was:

"Given the low traffic volumes estimated, it is considered that the traffic generated by the WTS would not impact on the local road network and, therefore, no improvement works to the off-site priority junctions would be required."

54. That conclusion was supported by the analysis in sub-section 3.3 "Junction Capacity". The traffic that would be generated by the proposed development was assessed in section 5. The conclusion, in sub-section 5.4, was that "[given] the low traffic volumes estimated, ... the traffic generated by the WTS is not anticipated to impact on the local road network and, therefore, no off-site junction improvement works are required". The final conclusion of the Transport Assessment, in section 6, was this:

"...

Assessment of the B184/Chelmsford Road priority junction indicates that the junction will work below capacity during the AM peak hour in 2013 and 2018 and is considered likely to remain so with the addition of WTS traffic, given the low volumes estimated. Although the B184 arm of the B1256/B184 priority junction is shown to be above capacity during future year PM peak hours, the WTS will not generate significant traffic during this period. Four vehicle trips, generated by staff departures, will occur after the WTS closes. Assuming these trips are undertaken during the PM peak, the equivalent of just one vehicle exiting the site every 15 minutes is not considered to impact on the operation of the junction during this time.

In conclusion, given the information presented in this TA, it is considered that the proposed WTS would create no [discernible] highways impact".

55. The Noise Assessment contained a detailed assessment of the likely noise effects of the proposed development. In section 6, its "Conclusions", it said that a "full noise impact assessment" had been carried out "in accordance with national planning policy and guidance." The assessment had "carefully considered the potential noise effects of the proposed development on existing noise-sensitive receptors in the vicinity of the site, which were assessed with respect to current, relevant British standards and guidance on commercial/industrial noise emissions affecting existing noise sensitive residential receptors". Four locations had been "identified and agreed with the Environmental Health Department of [the District Council] as noise sensitive receptors" to be included in the assessment. These were "Nos 2 and 3 Hoblongs Cottages and [Brook] Cottage east of the site ..., the Stansted Great Dunmow Travelodge north of the site, and Langley's Lodge to the north ... ".

56. The main conclusions of the Noise Assessment were these:

"... The assessment showed that worst case noise emissions during peak operations (including a +5dB(A) rating penalty in accordance with BS4142 ) do not exceed the lowest measured daytime background noise level [at] any residential receptor by more than +2dB(A) (with the exception of [Brook] Cottage) ... At [Brook] Cottage, predicted worst case noise emissions do not exceed the lowest measured daytime background by more than +5dB(A), a result which is considered to be of marginal significance."

and

"External noise levels in outdoor living areas were also considered with respect to the WHO (Guidelines for Community Noise, 2003) external noise level criterion of 55dBLAeq, T to avoid serious annoyance in outdoor living areas. Existing ambient noise levels are already in excess of this value in the external living areas of all nearby noise sensitive receptors, and the site contribution to these levels is not expected to be significant at any property with the exception of [Brook] Cottage. Due to its proximity to the site access route, and the lack of existing protection at the northern boundary between the garden and access road, noise level contributions due to site operations during the peak hour could reach 63dB LAeq, T, which whilst an increase of 3dBA on existing ambient levels, is already at an ambient noise level that exceeds the WHO guidelines and would therefore be of only marginal significance."

and

"In summary, predicted peak hour noise emissions from the site were found to be compliant with relevant guidance for all nearby residential properties. Noise levels at the residential receptors outside of the peak hours would be lower than those predicted for the peak hour and, therefore, also compliant with relevant guidance. No further mitigation of noise from the site need be considered for these receptors. Night time noise levels resulting from the continuous operation of the stack will also be compliant with relevant internal noise criteria for residential receptors.

It is concluded that operation of the proposed WTS would not have any significant effects on amenity for noise sensitive receptors in the vicinity of the site, having regard to current guidance and policy."

Mr and Mrs Hockley's objection

57. On 16 April 2012 Mr and Mrs Hockley wrote to the County Council objecting to the proposed development. They raised various concerns, including points on traffic at the Hoblongs junction, odour, noise, and allegedly inadequate consultation. They said it was "inconceivable that this application should go ahead without junction improvements". In the "Summary" at the end of the letter they said this:

"Yet again ECC are looking at the environmental issues as separate individual [effects] rather than the cumulative impact that the proposal brings to the existing factors. ...".

The committee meeting on 22 June 2012

58. At its meeting on 22 June 2012 the County Council's Development and Regulation Committee was told by the Head of Environmental Planning in section 6 of his report, "Appraisal", that the proposal had been screened for EIA. The screening opinion had confirmed that EIA would not be required. It was appended to the report.

59. The officer considered the likely effects of the development on neighbouring uses. He told the committee that there would be "no significant impact on amenity due to odour", and "no significant detrimental visual impact", and, in the light of the Noise Assessment, that "the development would not significantly adversely [affect] noise sensitive development nearby ... ".

60. There was no objection from the highway authority. In the light of the Transport Assessment the officer said that the waste transfer station would generate "far less traffic" than the development previously permitted; that "a marginal increase in traffic would occur mainly outside the peak hours"; and that although the B184 arm of the B1256/B184 junction would be "above capacity in future years" during the evening peak hour, "as the proposed development would be generating only a maximum of 4 staff vehicles during that ... period, it would not have a significant impact on the operation of the junction or the local road network". He went on to say, however, that "the applicant has provided a "Memorandum of Understanding" ... which confirms Essex County Council's commitment to provide a financial contribution of £50,000 to the Highway Authority towards the design and implementation of future improvements to the junctions of the B184/B1256 and/or the B184/Chelmsford Road". There was "a written commitment that the financial contribution will be paid prior to the commencement of the development, should permission be granted". This was "sufficient to meet the requirements of the Highway Authority". The officer then added this:

"In response to the representations received regarding the B1256/B184 junction, it is noted that the Highway Authority has aspirations to improve the junction in the future. The Travelodge and the police station have generated financial contributions which have been paid to the Highway Authority and may be used in the design/implementation of improvements to the junction; however these contributions are not sufficient to fund the entire project. Highway contributions are correctly required according to the proportion of impact a development would have on the highway network, and the proposed development would therefore contribute according to its potential impact."

The planning permission

61. The County Council's decision notice of 26 June 2012 contained 22 conditions, including a limit on the throughput of waste, set at 29,400 tonnes a year (condition 12); the hours of operation referred to in the committee report (condition 13); several requirements intended to limit noise emissions (conditions 14, 18 and 19); and a requirement that the improvements to the access road be completed before any waste was imported to the site (condition 20).

Other development at Great Dunmow

62. In his witness statement of 4 March 2013 Mr Richard Greaves, the County Council's Minerals and Waste Planning Manager, refers (in paragraph 10) to future improvements to the road network in and near Great Dunmow:

"With regard to cumulative impact relating to future highway improvements, it is noted that a contribution of £50,000 was required of the applicant prior to commencement of the development towards the design and/or construction [or] implementation of future improvements to the junctions of the B184/B1256 and/or the B184/Chelmsford Road. This figure was noted in the Committee report to be proportionate to the proposed scale of the development. All developments in the area were meant to contribute proportionately to road improvements. Given that the development would generate most traffic outside of peak hours, with only a maximum of 4 staff vehicles during the PM peak-hour period, the localised and in fact the overall impact is not considered to be significant. Therefore the impact did not warrant a requirement for the highway improvements to be in place prior to the beneficial occupation of the permitted development."

63. Mr Buxton refers (in paragraph 10 of his witness statement) to the contribution of £50,000 to highway improvements. He refers (in paragraph 10) to the "potential traffic impacts" of the waste transfer station that would result from "new use of the Hoblongs Junction by many HGVs". He mentions (in paragraph 11) the County Council's "Uttlesford Local Plan Highway Impact Assessment" of October 2013, which relates to future development in Great Dunmow. He gives his views about that document:

"12. As part of the evaluation of Uttlesford local plan proposals, Essex Highways undertook a study to assess the potential impacts resulting from various developments in the region. This includes cumulative consideration of traffic impacts on Great Dunmow as a result of the development in the area including the subject site ... . This cumulative traffic impact was not assessed in the screening of the application for the subject site as to whether there would be a significant impact or not for EIA purposes. It will be seen that the cumulative impact has in fact been considered to be significant such as to result in major junction changes to cope with increased traffic. The junction changes will be occurring in the immediate vicinity of the claimants' home and (whatever the effect on traffic) are likely to have a significant adverse impact (as what is presently a cul-de-sac appears to be being made into a major road).

...

14. I also observe that the Essex Highways document is to the effect that junction improvements would justify the significant effects otherwise likely to occur. I am aware that planned mitigation measures can ... be taken into account when considering whether environmental effects will be significant or not. However, ... the point for the present is that these cumulative impacts and their mitigation, including the time scale over which that ... would occur has not been considered at all in the screening process."

64. In a witness statement dated 28 October 2013 Ms Shelley Bailey, a Senior Planner employed by the County Council responds to Mr Buxton's evidence. Ms Bailey was the author of the screening opinion. She refers (in paragraph 11 of her witness statement) to the "Uttlesford Local Plan Highway Impact Assessment" of October 2013. She observes that this document "considers highways impact of two separate things, firstly the baseline network (being the amount of traffic at September 2012) plus existing committed developments (being developments with planning permission), and secondly the baseline network plus both the committed developments and new proposed development within the Local Plan (referred to as ULP development)". She then says:

"I note from table 8.1 ... that both in the baseline scenario, and the baseline with committed developments the capacity at the Hoblongs roundabout about which Mr Buxton is concerned is analysed in the same way (as being one or more arms approaching capacity in either of the peak hours). The land to the north and south of Ongar Road is included as commitments in this scenario. It is only when the addition of ULP development is made that it is considered that one or more arms of the roundabout will exceed capacity in the peak hours. Thus I am not convinced that this document demonstrates that the development about which Mr Buxton is concerned will cumulatively cause capacity problems as compared with the current amount of traffic, it is only when the further proposed development is added in that a problem is specifically identified."

Ms Bailey goes on (in paragraph 12) to point out the conclusion in paragraph 8(4) of the document: that, as she puts it, "with junction work by way of mitigation, even with all current commitments and with the future potential development identified there will be no capacity problems".

65. Mr Greaves refers (in paragraph 12 of his witness statement) to the allocation of the civic amenity site in Policy GD8 of the Uttlesford Local Plan:

"With reference to Policy GD8 of the Uttlesford Local Plan, the planning permission [for the waste transfer station] doesn't prejudice the use of the allocated land as a ‘Civic Amenity Site" as designated, since there is access to the remaining allocated land via the permitted site."

66. Mr Buxton refers (in paragraphs 3 to 9 of his witness statement) to the planning histories of three sites in Great Dunmow on which development has recently been proposed. These sites are known as "Land North of Ongar Road", "Land South of Ongar Road", and "Smith's Farm". Mr Buxton says (in paragraph 5 of his witness statement) that "the cumulative impact of the various developments here should have been considered [by the County Council] when considering whether the development was likely to have significant environmental effects for the purposes of the EIA directive". He adds (in paragraph 6) that "at least one of the other sites in question already had planning permission, and the development of the others was very likely" when planning permission was granted for the waste transfer station.

67. The site known as "Land North of Ongar Road" is to the west of the site of the proposed waste transfer station. An application for planning permission for 73 dwellings was submitted in May 2012. Permission was refused by the District Council on 23 August 2012, but was granted on appeal on 21 January 2013. The appeal decision was challenged in Mackman. As I have said, Lang J. gave judgment in that case on 7 November 2013 (see paragraph 5 above). She dismissed the claim. One of the grounds in it was that the Council had failed in its screening opinion of 25 June 2012 to grapple with cumulative effects, including those of the proposed waste transfer station and development on the "Land South of Ongar Road" and "Smith's Farm" (see paragraphs 47 to 83 of Lang J.'s judgment). Lang J. rejected that argument (paragraphs 59 to 76 of the judgment). She said (in paragraph 73) that the District Council's planning officer who prepared the screening opinion would have been aware of the relevant provisions of the Uttlesford Local Plan, and the application for a "civic amenity site" that was by then before the County Council. She referred to the development proposed for Smith's Farm. However, because that proposal post-dated the screening opinion the officer "was not under an obligation to consider them". A later screening decision, made by the Planning Inspectorate on 6 November 2012, was defective because it had not embraced "other development" for the purposes of assessing cumulative impact (paragraphs 81 and 82 of the judgment). However, Lang J. was not prepared to grant relief, because the District Council's screening opinion had been lawful.

68. The site known as "Land South of Ongar Road" received planning permission on appeal for the development of about 100 dwellings, on 20 June 2012. A corrected decision letter was issued on 12 July 2012. That permission was also challenged. It was quashed on 1 July 2013 (San Vicente v Secretary of State for Communities and Local Government [2013] EWHC 2713 (Admin)). On 12 December 2012 an application for the amendment of one of the grounds was granted, and the amendment of another refused ([2012] EWHC 3585 (Admin)). Permission to appeal against that decision was refused by the Court of Appeal on 5 July 2013 ([2013] EWCA Civ 817). I have been told that on 26 July 2013 a further proposal, for 100 dwellings, was submitted to the District Council, and that this was refused on 24 October 2013.

69. On the site known as "Smith's Farm" there is a long history of proposals for development. In 2005 the site was allocated for development as a business park in the Uttlesford Local Plan. In July 2012 the intending developer of that site, Crest Nicholson, responded to consultation on the draft local plan for Uttlesford, seeking an allocation for mixed use development. On 24 June 2013 an application for planning permission was submitted for a mixed use scheme of 370 homes, a retail food store, a primary school and employment development on a site of 20 hectares.

70. Ms Bailey accepts (in paragraph 9 of her witness statement) that "the three developments referred to by Mr Buxton were not specifically taken into account" in the screening opinion for the waste transfer station. She says, however, that she takes the reference in Schedule 3 of the 2011 EIA regulations to "the cumulation with other development" as a reference to development for which planning permission has already been granted. This, she says, is consistent with the guidance in paragraph 46 of Circular 02/99, which refers to cumulative effects with "existing or approved development".

Submissions

71. Mr Stookes submitted:

(1) The standard of review for an EIA screening process is not as high as perversity. When applied to this process, a Wednesbury-based review must acknowledge that the discretion in EIA screening is limited (see Mellor) and that the precautionary approach applies (see, for example, paragraph 43 of Pill L.J.'s judgment in Loader). This proposition finds support in UNECE's guidance on the Aarhus Convention implementation guide (see paragraph 32 above). When, as in this case, there are potential violations of human rights (under article 8 of the Human Rights Convention, and article 1 of the First Protocol), an effective remedy is essential. In these circumstances a conventional Wednesbury approach is insufficient.

(2) The County Council applied an unduly restrictive approach in assessing whether the proposed development was likely to have significant environmental effects. Its screening opinion does not demonstrate the comprehensive assessment required under the EIA directive, consistent with the precautionary approach. It failed to face the question of whether the effects of the waste transfer station on the environment would be significant. The planning permission allows a maximum of 29,400 tonnes of waste to enter the site every year and requires a maximum of 29,400 tonnes of waste to leave. So the site will handle the movement of up to 58,800 tonnes of waste a year, much of it carried in large vehicles. If it had followed the advice in paragraph A36 in Annex A to Circular 02/99, the County Council should have seen that EIA was likely to be required.

(3) The County Council failed to take into account relevant cumulative effects, and failed to see that this was a case of "project splitting". There are likely to be cumulative harmful impacts, in particular from additional traffic - including the effects of noise, fumes and air pollution. The proposed development ought to have been considered together with local junction improvements and other highway improvement works in the vicinity of Great Dunmow, the future development of the rest of the site allocated under Policy GD8 of the Uttlesford Local Plan, and the likely increases in traffic that would arise from the other developments proposed or recently permitted in Great Dunmow. The second of those three matters was also an example of project-splitting because the proposed development of the waste transfer station left open the possibility of a civic amenity site coming forward on the allocated land.

(4) Lang J.'s judgment in Mackman supports the argument on this ground. In this case the County Council has accepted that it did not take the cumulative effects into account. The European Commission's guidance refers to "existing/planned projects". Here at least some of the other development already existed or were sufficiently certain: for example, the ambulance station, the improvement of the Hoblongs junction, the development of the rest of the land allocated for a civic amenity site, and the development on the "Land South of Ongar Road". The County Council has maintained in this case that such cumulative effects are not relevant. But that is at odds with Lang J.'s conclusions in Mackman - that the District Council did take account of such effects in its screening exercise in that case, and that the Planning Inspectorate's screening decision was flawed by the failure to assess cumulative impact. Mr and Mrs Hockley only have to establish that there is the potential for significant [cumulative] environmental effects to arise (see the judgment of Sullivan L.J. in R. (on the application of Birch) v Barnsley Metropolitan Borough Council [2010] EWCA 1180).

72. Mr Shadarevian submitted:

(1) Mr Stookes seeks to persuade the court that it should not apply Wednesbury principles. That is wrong. A similar argument was run in Evans and was not accepted by the Court of Appeal. The court should only interfere with the County Council's judgment on whether there are likely to be significant environmental effects if it considers either that the screening opinion is so defective, either in the approach adopted or in the reasons it contains, that it cannot be allowed to stand, or that the decision that there are not likely to be significant environmental effects is irrational in the Wednesbury sense.

(2) The County Council's screening opinion is lawful. The AMEC documents provided at least enough information on which to base the screening judgment. The soundness of that information was later demonstrated in documents submitted with the application for planning permission. The County Council saw that it was dealing here with Schedule 2 development. With the advice in Circular 02/99 in mind, it considered carefully whether any significant effects on the environment were likely. It was right to take the throughput of 29,400 tonnes as the amount of waste that would be handled by the waste transfer each year, and not to double that figure. In the light of the material submitted by AMEC, it identified the main potential effects. It reached its own screening judgment, and that judgment was a reasonable one.

(3) The screening opinion is not flawed by a failure to take into account cumulative effects. The guidance in paragraph 46 of Circular 02/99 is that authorities should have regard to the possible cumulative effects with any "existing or approved development". When the screening process was undertaken in this case none of the developments referred to by Mr Stookes was either "existing" or "approved''. When planning permission was granted for the waste transfer station, only the development on the site known as "Land South of Ongar Road" had been approved. But in any case the evidence produced to the court on behalf of Mr and Mrs Hockley does not demonstrate that any of the cumulative effects for which they now contend would actually arise, or that they might be significant if they did.

(3) The allegation of "project splitting" is also misconceived. The waste transfer station is not part of an inevitably more substantial development. It is a stand-alone project that will go ahead independently of any other proposals. It does not involve or depend upon any improvements to the Hoblongs junction, or any other works on the highway apart from its own access junction. The Transport Assessment showed this to be so. And Mr and Mrs Hockley do not question the soundness of the engineering judgment itself. Future works to the Hoblings junction, if they are proposed, will be a different project. The same can be said of the civic amenity site. To say, as Mr Greaves does in his witness statement, that such development would not be prejudiced by the waste transfer station is not the same as saying that these are two components of a single project. They are not.

(4) There is nothing in the further submissions made by Mr Stookes in the light of Lang J.'s decision in Mackman. Lang J. did not have to decide whether in its screening exercise the District Council was obliged to take into account other developments. She found that it had done so. Mackman is not authority for the proposition that on the facts of this case the County Council's screening opinion was vitiated by a "failure" to consider cumulative effects. In any event the evidence before the court - and indeed the screening opinion upheld in Mackman - goes against that conclusion. There is no basis in evidence for the assertion that the proposed waste transfer station would cause or contribute to any cumulative effects that ought to have been considered in the screening of this development (see paragraph 37 of Sullivan L.J.'s judgment in Boggis).

Discussion

73. I cannot accept Mr Stookes' submissions on this issue.

74. In my view the approach taken by the County Council to screening the proposed development was appropriate and lawful. The screening opinion was not defective through the omission of any potentially significant effect on the environment that ought to have been considered. This is not a case of an unlawful failure to consider cumulative effects. Nor is it a case of "project-splitting".

75. I have referred to the relevant domestic jurisprudence on screening (see paragraphs 22 to 28 above). The degree of scrutiny that the court should apply to a screening opinion has been considered by the Court of Appeal on several occasions. The court has acknowledged that the precautionary approach must inform the screening process. But it has consistently held that screening involves what is essentially a fact-finding exercise and, where the questions of "likelihood" and "significance" are concerned, the exercise of judgment (see, in particular, paragraph 22 of Beatson L.J.'s judgment in Evans). Those are tasks for the screening decision-maker, subject to supervision by the court on normal public law principles. I see no force in Mr Stookes' submissions on the court's jurisdiction in a case such as this, which largely replicated the argument that failed before the Court of Appeal in Evans (see paragraph 26 above). I must apply the traditional approach to review that has been strongly endorsed by the Court of Appeal in the case law to which I have referred.

76. I do not think the approach adopted by the County Council to screening the proposed development was inappropriate, or that the screening process as a whole was in any respect unlawful.

77. The screening exercise was informed by the material AMEC had submitted (see paragraphs 33 to 40 above). The documents provided by AMEC were referred to in the screening opinion and annexed to it. That material was, in my view, at least sufficient to enable the screening assessment to be made. The main potential effects on the environment were identified, and substantial information was provided about them. The officer who prepared the screening opinion plainly took that information into account. I did not understand Mr Stookes to submit that the information provided was inaccurate, or that the expert judgments expressed in it were questionable. And I can see no reason to conclude that it was either unreliable or deficient.

78. I have referred to the main parts of the screening opinion (in paragraphs 41 to 50 above). Its structure is logical. The officer who undertook it began with the right questions: whether the development fell within Schedule 1 to the 2011 EIA regulations - which it did not; whether the development fell within Schedule 2 - which it did; and whether the development was proposed in a "sensitive area" - which it was not. She then tackled the relevant criteria for the form of development proposed, namely an "[installation] for the disposal of waste" within paragraph 11 b) in column 1 of Schedule 2. The applicable thresholds and criteria were identified and applied. The two that were relevant here, the size of the site (more than 0.5 of a hectare) and its proximity to "controlled waters" - it being within 100 metres of the Hoblongs Brook - were noted. It was acknowledged that a view had to be taken on the crucial question for a screening decision-maker: whether there were likely to be significant environmental effects. All of this was impeccable.

79. What followed was, in my view, a sufficiently thorough and sufficiently reasoned analysis of the considerations that had to be dealt with in answering the question that had to be answered.

80. The screening opinion mentioned the relevant passages in the Government's guidance on screening in Circular 02/99, including the advice in paragraph A36, which relates specifically to proposals of this kind. It acknowledged that for development of this capacity - a maximum throughput of 29,400 tonnes of waste a year - the circular said, in effect, that EIA was less likely to be required than for a development with capacity "to hold more than 50,000 tonnes per year" of "household, industrial and/or commercial wastes". But the officer adopted a cautious approach, recognizing that the development would be receiving some waste that was not inert. In my view the correct figure for the annual throughput of the development was 29,400 tonnes. Mr Stookes suggested it was twice as much as that because this amount of waste would not only come in but also go out. I do not think that suggestion is right. The throughput of a waste transfer station is the quantity of material that passes through it. In this case that was going to be no more than 29,400 tonnes each year.

81. Paragraph A36 of the circular identifies the matters on which the likelihood of significant effects being caused by such development will "generally depend". These are "discharges, emissions [and] odour". Those three matters provided the structure for the assessment in the screening opinion. Each was dealt with in the light of the information in the screening request. And in my view this was done in sufficient depth for a screening assessment.

82. I did not understand Mr Stookes to criticize what was said specifically about "Discharges" and "Odours". Anyway, I do not see how any criticism could be made of those parts of the screening opinion. It is clear that in the County Council's judgment no significant effects on the environment were likely to arise in either of those two respects.

83. Mr Stookes' complaint seemed to be largely about the treatment given to traffic, in the section of the screening opinion under the heading "Emissions". I see nothing in the submissions he made. The estimated number of vehicle movements each day - 74 and 66 in alternate weeks - was based on the analysis provided by AMEC. Mr Stookes did not suggest that the numbers were inaccurate, or the analysis flawed. Two potential effects of the movement of vehicles into and out of the site were considered: the effect on air quality and noise. Neither was judged likely to be significant. I do not think any other conclusion could reasonably have been reached, let alone that the one the officer did reach was unreasonable.

84. The screening opinion referred to the Transport Assessment that would be required with the application for planning permission. But this was not to defer the judgment that had to be made at the screening stage. And the level of traffic generation on which the screening opinion was based was later supported in the Transport Assessment (see paragraphs 52 to 54 above).

85. The noise likely to be caused by the waste transfer station in operation was considered. The assessment included the effect of noise on the dwellings to the east of the site and on the hotel to the north. The screening opinion referred to the intended design and siting of the building, the measures that would be taken to control noise from the odour extraction system, and the fact that there would be no working at night. Again, the screening judgment was borne out by the more detailed work undertaken by AMEC in the Noise Assessment submitted with the application for planning permission (see paragraphs 55 and 56 above).

86. Not every paragraph of the screening opinion said there was no likely significant effect on the environment. But this is clear from a fair reading of the document as a whole and from its final conclusion (see paragraph 49 above).

87. Is that conclusion unsound because the screening opinion did not consider the possibility of there being cumulative effects on the environment, or the prospect of a larger development than was in fact screened? I do not believe it was.

88. The effect of the European and domestic jurisprudence on cumulative effects and project-splitting is that a screening decision-maker must consider the project in its entirety, together with any other development that in combination with it might be likely to cause significant effects on the environment. And it must not ignore other sections or stages of a larger project of which the development under consideration is an integral part. The concept of likelihood in this context is the one referred to by Moore-Bick L.J. in Bateman (in paragraph 17 of his judgment), namely a "serious possibility" (see paragraph 24 above).

89. I do not see any force in the submissions Mr Stookes made on this theme.

90. The waste transfer station was not a development associated with, or necessitated by, any other development likely to be proposed in the local or wider area. It was not part of a larger scheme that ought to have been screened as a whole. The facts of this case are materially different from those in which the proposal under consideration is demonstrably part of a larger whole, or one of two or more stages in a sequence of development (see paragraph 28 above).

91. Future improvements to road junctions near the site were not part of this project. Both at the screening stage and later when the Transport Assessment was produced it was not expected that the waste transfer station would require any junction improvements beyond the improvement of the site access junction to enable HGVs to enter and leave the site. The Transport Assessment confirmed that no other works on the highway were required by this development. That conclusion is not criticized by Mr Stookes. It is true that the County Council's committee took into account the promised contribution of £50,000 towards junction improvements. But those improvements were not proposed in this development. There was no scheme for them. And there was no section 106 planning obligation or "Grampian" condition attached to the planning permission requiring them to be carried out before the waste transfer station could be built or operated. If improvements to the local road network are carried out in the future, and if they are themselves EIA development, they will be subject to EIA. But the waste transfer station did not depend on such works. It was not necessary, nor would it have been realistic, to include in this screening process the effect of highway improvements that were not required for this development, and whose form and timing remained unclear.

92. The improvements to the Hoblongs junction, if they are carried out, will improve the flow of traffic through it. The nature, detail and timing of those works were not known when the screening opinion for the waste transfer station was prepared, or when planning permission was granted. But in any case the information provided to the County Council did not show that the development was likely to impair the capacity or safety of the junction, or any other part of the local road network. In these circumstances it was not unreasonable for the County Council to screen the development without speculating about the improvement to this junction that might later come forward.

93. Both when the proposed waste transfer station was considered at the screening stage and when the application for planning permission went to committee the possibility of the rest of the site allocated under Policy GD8 being developed as a civic amenity site was no more than that, a possibility. It was not a proposal. It was not the second or a subsequent phase or stage of a larger scheme including the waste transfer station. The highest Mr Stookes could put this point was that Mr Greaves says in his witness statement that the development of the waste transfer station would not "prejudice" the allocation. But this does not mean that such a proposal was likely to be promoted by the County Council. And in any case, as Mr Shadarevian said, if such a proposal were to come forward in the future, and if it had to be screened under the 2011 EIA regulations, the screening exercise for it would be dealing with a real project rather than merely a concept. That process would have to consider any cumulative effects with other development already approved, which would include the waste transfer station. But in the absence of any tangible proposal for such a facility at the time when the waste transfer station was being considered, it would have been neither worthwhile nor appropriate to try to do that.

94. I also reject the submission that the screening process for the waste transfer station ought to have embraced the cumulative effects of that development with any or all of the other schemes referred to by Mr Stookes.

95. I have set out the relevant history of those sites and proposals (in paragraphs 66 to 69 above). When the screening opinion for the waste transfer station was issued in January 2012 none of the schemes had planning permission. The application for the development on the "Land North of Ongar Road" had not yet been made. It was submitted in May 2012. Planning permission was not granted until January 2013, some six months after the waste transfer station was approved. For the "Land South of Ongar Road" planning permission was eventually granted on appeal in June 2012. The proposal for the development at Smith's Farm was not made until June 2013.

96. But even if one ignores the chronology there is, I think, an insuperable difficulty for Mr Stookes' submissions.

97. To say that development on other sites would be generating traffic, some of which would be using the same parts of the local road network as vehicles travelling to and from the waste transfer station does not serve to demonstrate a potentially significant cumulative effect. For Mr Stookes' argument to succeed the court would have to be able to conclude that there was such an effect, which was attributable at least in part to the proposed waste transfer station and which ought to have featured in the screening process for that particular development. It is not enough merely to assert that other developments, whether existing, approved or proposed, would themselves generate a substantial amount of traffic, in the absence of any clear evidence that the waste transfer station itself might add materially to that traffic either in the peak hours or overall. There is, in fact, no evidence before the court to demonstrate the possibility of cumulative effects of that or any other kind, either with existing development - such as the ambulance station - or with any approved or planned projects yet to be carried out.

98. Mr Buxton's witness statement of 21 October 2013 does not provide such evidence. Two things may be said about the comments he makes. First, they do not cast doubt on the traffic analysis on which the screening opinion was based, later confirmed in the Transport Assessment, which led to the conclusion that the traffic from the waste transfer station would have no discernible impact on the highway (see paragraphs 52 to 54 above). There is nothing before the court by way of evidence to disprove that conclusion. And secondly, Mr Buxton's evidence does not demonstrate the potential for this development to cause or contribute to any significant cumulative environmental effect through the traffic it would bring to local roads and junctions.

99. The contentions made by Mr Buxton do not seem to reflect the analysis in the document on which he relies - the highway impact assessment prepared by the County Council as highway authority in October 2013 to help the District Council in the preparation of its local plan. I have referred to the relevant parts of that assessment (see paragraph 63 above). When one looks at it, I do not think one finds anything to undermine the conclusions reached by the County Council in its screening opinion.

100. As Ms Bailey points out in her witness statement, the "Committed Developments" taken into account by the authors of the assessment included 100 dwellings on the "Land South of Ongar Road" and 73 dwellings on the site known as "Land North of Ongar Road" (Table 2-9: "Great Dunmow Committed Developments: Dwellings"). Table 8-1: "Summary of Great Dunmow Junction Capacity Status" indicates that, for the Hoblongs junction, the addition of the committed development does not worsen the "Base" situation in which "[one] or more arms [of the junction is] approaching capacity in either of the peak hours", even in 2026. Only through the addition of the development proposed to be allocated in the local plan does that situation change to "[one] or more arms at or exceeding capacity in either of the peak hours". Table 8-2: "Final Great Dunmow Junction Capacities with all Mitigation Measures Implemented" indicates that, in 2026, with the junction improvements in place, the performance of the Hoblongs junction would have been improved so that there will be "[no] capacity issues in either peak hour". In any event I do not think the assessment demonstrates that the waste transfer station will make any difference to the need for junction improvements on the local or wider road network, to the form such improvements will take, or to the timescale for their implementation. And I do not think it lends support to the view that, in combination with the development permitted or envisaged on any of the sites in and around Great Dunmow, the waste transfer station might itself be responsible for effects that ought to have been considered in its screening process. Mr Buxton's evidence to the contrary is no more than assertion.

101. It seems telling that the points now taken about cumulative impact and project-splitting were not made to the County Council either at the screening stage or when the application was being considered. Even now there is no criticism of the conclusions expressed in the committee report about the traffic the waste transfer station would put on local roads - conclusions evidently shared by the members. Mr Stookes did not seem to argue that the committee ought to have considered the effects of traffic generated by the proposed development together with the traffic likely to be generated by other projects, or that the Transport Assessment, which explicitly allowed for traffic growth in Great Dunmow, ought to have been prepared on a different basis. The point is raised solely in the context of the screening process. And in my view it is misconceived.

102. There has to be a sensible limit to what a screening decision-maker is expected to do. This view is supported in the cases to which I have referred, notably, for example, in Bateman (see paragraph 24 above). Conjecture about future development on other sites that might or might not act with the development in question to produce indirect, secondary or cumulative effects is not in the screening decision-maker's remit. I do not think the precautionary approach extends to that. And when it is suggested in a claim for judicial review that a screening decision was deficient because some potential cumulative effect was left out, it is not enough for a claimant simply to point to other developments in the locality that have been or might be approved, and to leave it to the court to work out whether any aggregate effects were unlikely to be significant. Unless it is obvious that relevant and potentially significant effects on the environment have been overlooked, the court will need some objective evidence to show this was so. It will need to be satisfied that the authority responsible for the screening decision was aware, or ought to have been, of the potential cumulative effects; that the screening opinion could not reasonably have been negative if those potential effects had been considered; and that this was, or should have been, apparent to the authority at the time.

103. Above all, the court must be able to conclude in those circumstances that the authority's screening judgment was rendered unlawful by the omission. The court's role is not to second-guess the screening judgment of the authority to which Parliament has entrusted the task, but only to review that judgment on Wednesbury grounds. The thrust of what Sullivan L.J. said in paragraph 37 of his judgment in Boggis must surely apply to the screening process for EIA (see paragraph 28 above). If the court is to strike down an otherwise lawful planning permission because potentially significant effects on the environment have been ignored in a screening opinion it must have some solid basis for that conclusion. In this case I find it impossible to conclude, on the submissions and evidence before me, that the County Council's screening opinion was flawed in that way.

104. In summary, I see no error of law in the County Council's screening process in this case. This ground of the claim therefore fails.

Issue (2) - Policy GD8

The relevant law

105. Section 38(6) of the Planning and Compensation Act 2004 provides that the decision on an application for planning permission is to be made in accordance with the development plan unless material considerations indicate otherwise (see generally City of Edinburgh v Secretary of State for Scotland [1997] 1 W.L.R. 1447). The interpretation of planning policy is ultimately a matter for the court (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13, at paragraphs 18 and 19). If a local planning authority chooses to depart from a policy it must have sound reasons for doing so, which must be made clear (see the judgment of Nolan L.J. in Horsham District Council v Secretary of State for the Environment [1992] 1 P.L.R. 81, at p.88). As the parties agree, the development in this case does not fall within any of the categories set out in the Town and Country Planning (Consultation) (England) Direction 2009, which came into force on 20 April 2009, relates to applications for planning permission received by planning authorities on or after that date, and cancelled Circular 07/99 and the Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999. There was therefore no statutory requirement for the Secretary of State to be consulted on the proposed development. 
The officer's report and the decision notice

106. In his report to committee, when considering whether the proposed development complied with Policy GD8 of the Uttlesford Local Plan, the officer said this:

"ULP Policy GD8 (Civic Amenity Site and Depot) identifies the need for a civic amenity site to serve the southern part of Uttlesford. A 1.83 hectare site is allocated for use as a civic amenity site and depot.

It is considered that the use of the site as a waste transfer station does not directly comply with ULP Policy GD8. During consideration of the previous planning application ... it was considered that the proposed Recycling Centre for Household Waste, parking for refuse collection vehicles and waste transfer building, were akin to the waste use required by the policy and that any breach of that policy could only be considered to be marginal.

The current application proposes only the waste transfer element, which is not a requirement of ULP Policy GD8. Therefore, although the proposed use is a ‘waste' use which could still be considered to be akin to that required by the policy, it is considered that in the strictest sense the development would be a departure from ULP Policy GD8."

107. The officer also said that the "impacts of the allocated ‘civic amenity site and depot' use" would be similar to "those arising from a B2 (General Industrial) use", which was usually considered permissible in "an industrial or employment area". It followed that the site's allocation was "akin to an industrial or employment area designation".

108. On the procedure for referring applications to the Secretary of State, the officer referred to Circular 02/2009. He advised the committee that the development did not fall within any of the types of development for which the Secretary of State had to be consulted under the Town and Country Planning (Consultation) (England) Direction 2009. Circular 07/99 and the Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999 had by now been cancelled. In his witness statement (at paragraph 5) Mr Greaves confirms this. He contrasts this claim with the previous one, in which the County Council conceded that it had failed to refer the application to the Secretary of State:

"... [There] are no concessions in relation to the current judicial review ... . Circular and Direction 07/99 was applicable to [the previous proposal], whereas Circular and Direction 02/2009 is clearly applicable to [this proposal], resulting in no requirement to refer to the Secretary of State in the latter instance."

109. The officer drew his assessment together in section 7 of his report, the "Conclusion". He said permission had already been granted for "a waste-related use on the site". But he emphasized that this proposal had been "considered against the development plan and other material [considerations] on its own merits". He concluded that the development would "provide necessary waste management facilities for the area"; that it would be "modern and purpose-built to manage waste for the general benefit of the health and well-being of the wider community"; that it would be "sustainable development, for which there is a presumption in favour"; and that "any adverse impacts could be further controlled and mitigated with the imposition of appropriate conditions". He then said this:

"The proposed development is considered to be contrary to ULP Policy GD8 (Civic Amenity Site and Depot), however it is considered to be a similar waste use which, as noted previously, would have less impact than the previously approved use which was broadly in compliance with ULP Policy GD8. It is also noted that [the District Council] has raised no objection to the scheme."

110. In the light of his assessment in the preceding parts of his report, the officer also concluded that the development would comply with a large number of relevant development plan policies, including "[Uttlesford Local Plan] Policies S7 (the Countryside), GEN1 (Access), GEN2 (Design), GEN4 (Good Neighbourliness), ... and ENV11 (Noise Generators)" and "[Essex and Southend Waste Local Plan] Policies ... W4A (Flood Control), W4B (Water Pollution), ... [and] W10F (Hours of Operation)".

111. The officer's final conclusion was that the "benefits of the proposals would ... outweigh any adverse impacts, and planning permission should be granted in accordance with the guidance contained in the NPPF".

112. Those passages of section 7 of the officer's report were reproduced in the summary reasons given for the grant of planning permission in the County Council's decision notice.

113. The officer appended to his report a schedule headed "Consideration of consistency of Policies", identifying the relevant policies of the waste local plan and the Uttlesford Local Plan and considering their relationship to the NPPF and PPS10.

Submissions

114. Mr Stookes submitted:

(1) Although there was no requirement for the Secretary of State to be consulted on the proposal for the waste transfer station, it was still necessary for adequate and rational reasons to be given for the departure from Policy GD8. This was not done. Both the officer in his report and the County Council's committee acknowledged that the proposal did not comply with Policy GD8. But the analysis it used to justify granting planning permission for the development makes no sense.

(2) The officer said the proposed use was ‘‘akin to that required by the policy''. That is not so. A waste transfer site is a wholly different kind of development from a civic amenity site, and will give rise to quite different environmental effects. A civic amenity site is highly unlikely to accept food waste, but the waste transfer station is expected to accept more than 4,000 tonnes of such waste every year. A civic amenity site is mainly a facility for recycling, whereas a waste transfer station handles residual waste. Unlike a civic amenity site, a waste transfer station will be used by heavy vehicles, which are likely to give rise to noise nuisance. And in any event Mr Greaves' evidence suggests that the waste transfer station will be developed as well as the civic amenity site, not instead of it.

(3) It was not rational to regard the departure from Policy GD8 as acceptable because the breach of policy in the previous proposal "could only be considered to be marginal". If the departure from policy had truly been "marginal" the County Council would not have consented to the planning permission being quashed. This development would be a "fundamental departure" from Policy GD8.

115. Mr Shadarevian submitted:

(1) The County Council did not misinterpret Policy GD8. It understood that the policy effectively creates a presumption in favour of a civic amenity site on the allocated land. The officer was entitled to tell the members that the proposed use was "akin" to such a development. This was a reasonable view. Both a waste transfer station and a civic amenity site are operations for the handling of waste. The assertion that a civic amenity site would have different effects from a waste transfer station is highly speculative, inappropriate in these proceedings, but in any case irrelevant.

(2) There was no error of law. The County Council considered all of the impacts of this proposal including those from noise and traffic, and concluded that they would be acceptable. It did not have to consider the effects of a civic amenity site being developed on the adjacent land. If such a development is promoted, it will have to be considered in the knowledge that the waste transfer station is approved or already in use.

(3) There is nothing inconsistent between the County Council submission to judgment in the previous claim for judicial review and its conclusion in both cases that the breach of Policy GD8 was "marginal".

Discussion

116. Again, I find it impossible to accept Mr Stookes' submissions. Mr Shadarevian's are in my view plainly correct.

117. I do not accept that the County Council's officer misunderstood or misrepresented Policy GD8 of the local plan. The policy allocates a site of 1.83 hectares to the south of the Hoblongs industrial estate "for a civic amenity site and depot" (see paragraph 7 above). Such a project would therefore be acceptable on the site. And at least when the local plan was adopted this was clearly regarded as a desirable form of development. The policy does not say, however, that no other proposal would be acceptable, on either the whole or part of the site.

118. Mr Greaves' evidence that the development of the waste transfer station will not prejudice the development of a civic amenity site on the remainder of the allocated land does not mean that a civic amenity site is proposed or is expected to come forward. Mr Greaves is only saying, in effect, that the allocation in Policy GD8 will not be frustrated by the development of the waste transfer station. There is nothing in the officer's report to committee to suggest any different view. Of course, if a civic amenity site were to come forward it would have to be considered on its merits, including the fact that the waste transfer station was already there, or at least that planning permission for it had been granted.

119. But in any event I see nothing unreasonable in the officer's view that the development of the site as a waste transfer station would not "directly comply" with Policy GD8; or in his opinion that the breach of Policy GD8 in the previous proposal was "marginal"; or in his advice that the proposed waste transfer station was a "waste" use "akin to that required by the policy" but "in the strictest sense ... a departure" from Policy GD8. And I cannot see any legal error in the officer's conclusions that the impacts of the allocated "civic amenity site and depot" would be "similar to those arising from a B2 (General Industrial) use ..."; that the waste transfer site would have effects similar to those arising from a general industrial use; and therefore that the site allocation is "akin to an industrial or employment area designation". All of these conclusions were well within the range of reasonable planning judgment, and thus well beyond the court's power to intervene in the resulting planning decision. It is not for the court to consider what the comparative merits of a civic amenity site might have been. But the officer was plainly entitled to regard the two uses as being of a similar character. There would obviously be differences between these two types of development for waste, but in my view, those differences were not such as to make the officer's judgment unreasonable.

120. The County Council's decision to grant planning permission for the waste transfer station, notwithstanding its view that the development was contrary to Policy GD8, was not inconsistent with its consent to judgment in the previous proceedings. It submitted to judgment because it accepted that it had not complied with the statutory requirements then in force for referring applications to the Secretary of State. That did not happen in this case.

121. I think that two things are important here. First, the conflict with Policy GD8 was clearly acknowledged and placed in the planning balance. Secondly, whether or not the waste transfer station could properly be regarded as comparable to a civic amenity site, it was considered and judged acceptable on its own merits. The officer's report makes this plain.

122. It is wrong to suggest, as Mr Stookes did, that the reasons for the committee's decision to approve the development, in spite of the admitted departure from Policy GD8, were not clearly explained. They were explained, both in the committee report and in the summary reasons in the County Council's decision notice, which matched the conclusions in section 7 of the report. Those reasons are clear and beyond criticism.

123. On a fair reading of the report and the summary reasons, the waste transfer station was not approved because it was similar to another form of development. It was approved because, when considered in the light of the relevant provisions of the development plan and all other material considerations, and despite the conflict with one of the policies of the plan, it was acceptable.

124. The officer's assessment of the proposal in the light of relevant policy was, in my view, comprehensive and well balanced. There is nothing convincing in Mr Stookes' complaints about it. The likely effects of the development, including the noise and traffic it would generate, were all carefully considered. It was found to be largely compliant with policy, both in the development plan and at the national level. It was seen as sustainable, beneficial, and capable of being satisfactorily controlled by conditions. This was, in my view, a classic exercise of planning judgment, with which the court should not interfere.

125. I therefore reject this ground of the claim.

Conclusion

126. For the reasons I have given the claim must be dismissed.