IN THE HIGH COURT OF JUSTICE CO/0694/98
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Tuesday 13th April 1999
B e f o r e:
MR JUSTICE HOOPER
R E G I N A
ST EDMUNDSBURY BOROUGH COUNCIL
(ex parte WALTON)
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Transcript of the handed down Judgment by
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
(Official Shorthand Writers to the Court)
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MR H PHILLPOT (Instructed by Richard Buxton, Cambridge) appeared in place of MR R McCRACKEN on behalf of the Applicant.
MR N KING (Instructed by the Legal Department of St Edmundsbury Borough Council) appeared on behalf of the Respondent.
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J U D G M E N T
(As approved by the Court)
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Mr Justice Hooper:
The applicant, a local resident of Bury St. Edmunds, seeks by way of judicial review an order quashing (1) a decision of the planning committee of St. Edmundsbury Borough Council ("the Council") dated 8th January 1998 to grant conditional planning consent for the construction of an access road from Cullum Road, Bury St. Edmunds to the Westgate Brewery of Greene King Plc ("Greene King") and (2) a decision of Mr Fuller, a Council planning officer, made on or after the 2nd June 1997 not to require Greene King to submit an environmental statement. As to the second of those decisions the respondent understandably did not object to the applicant seeking a judicial review of that decision albeit that it was not a decision of which judicial review was originally sought. Secondly the respondent did not object to the applicant submitting that Mr Fuller had no authority to make the decision, a ground upon which reliance had not originally been placed.
Following discussions with planning officers, Greene King submitted the application for planning permission. It was received by the Council on 28th May 1997. Accompanying the application were an ecological report prepared by Robert Stebbings Consultancy, a landscape report and a traffic report (2/1-5 and 32-75). Mr Fuller's affidavit (para. 3.1, 1/86) is inaccurate in that David Hicken's statement in support of the planning application was not included. That important inaccuracy was unfortunately revealed only on the second day of the hearing.
To the south of the town of Bury St. Edmunds there is an area of water meadow across which there is a network of footpaths and cycle routes. The area, known as Holywater Meadows, lies between the River Linnet and Cullum Road, a post-war road. Greene King have already built a depot on a portion of the water meadows close to, but not adjoining, Cullum Road. In order particularly to relieve the old town of congestion caused by heavy goods vehicles, Greene King want to build a road from Cullum Road alongside the depot across the river and into an area of car parks and warehouses to the north of the River Linnet. The access road is designed to divide into two shortly before it crosses the river. Goods vehicles will go into the area of the warehouses, cars will go into a parking area. Because it will be a private road there is planned to be a gatehouse with traffic barriers in the area immediately to the west of the depot. The planning application envisaged a roundabout adjoining Cullum Road which would lead traffic into the access road. Subsequently the proposed roundabout was replaced with a proposed T junction.
It is the applicant's case that there was a failure on the part of the respondent to carry out the necessary environmental impact assessment. There was no dispute that the proposed development fell within Schedule 2 of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 Number 11/99. By virtue of reg. 9:
"1. Where it appears to the local Planning Authority that an application for planning permission is ... a Schedule 2 Application [as defined] and it is not accompanied by an environmental statement, they shall ... within 3 weeks beginning with the date of receipt of the application, or such longer period as they may agree with the applicant in writing, notify the applicant in writing that they consider the submission of such a statement is required, giving their full reasons for their view clearly and precisely."
An applicant receiving such a notification must either provide such an environmental statement or in effect, "appeal" to the Secretary of State against the requirement. If the applicant does not take either of those steps, then the application is deemed to be refused. According to reg. 2(1) a "Schedule 2 application" means an application for planning permission for the carrying out of a development listed in Schedule 2 (as this one was) and "which will be likely to have significant effects on the environment by virtue of factors such as its nature, size or location." No environmental statement was required of, or provided by, Greene King.
By virtue of reg. 4(2) "the local planning Authority ... shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so." To discover whether an application is one "to which this regulation applies", it is necessary to examine reg. 4(1), (3) and (4). By virtue of reg. 4(1), reg. 4(2) applies to a Schedule 2 application as defined in reg. 2(1).
Reg. 4(3) and (4) provide:
"(3) Subject to any direction of the Secretary of State the occurrence of an event mentioned in paragraph (4) shall determine, in the case of an application for planning permission for development ... that, for the purposes of this regulation, the application is a Schedule ... 2 application.
(4) The events referred in paragraph (3) are
(i) the submission by the applicant of an environmental statement expressed to be for the purposes of these regulations;
(iii) the making to that authority by the applicant of a written statement agreeing or conceding that the submission of an environmental statement is required."
Mr King, on behalf of the respondent, submits that reg. 4 had no application to this case. Mr Fuller had declined to require Greene King to submit an environmental statement and none of the events in paragraph 4 had occurred. Mr McCracken, for the applicant, submits that if Mr King was right then the draughtsman would not have used the word "that" in paragraph 3 immediately before the words "for the purposes of this regulation" but would have used the word "whether". He submits that, if Mr King was right, then it would have the following consequence. Once a decision had been made under reg. 9 not to require the applicant to provide an environmental statement, then however clear it became thereafter that the application was a Schedule 2 application within the meaning of reg. 2(1), the applicant could not be required to provide an environmental statement and reg. 4(2) would have no application. It is not necessary for me to decide between those two conflicting submissions. Having regard to the provisions of Council Directive of 27th June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC) (the "Directive") and in light of the fact that the regulations purport to comply with the Directive, it seems to me that the submission of Mr McCracken is to be preferred.
The phrase "environmental information" in reg. 4(2) is defined in reg. 2(1) as meaning the environmental statement prepared by the applicant for planning permission, any representations made by any body required by the regulations to be invited to make representations or to be consulted and any representations duly made by any other person about the likely environmental effects of the proposed development.
Reg. 9 requires "the local planning authority" to decide whether an application appears to be a Schedule 2 application. In this case the decision was taken by Mr Fuller. Mr McCracken accepts that a local authority may delegate such a decision to a planning officer under Section 101 of the Local Government Act 1992. He submits, however, that no such delegation was in fact made and that Mr Fuller therefore had no authority to make the decision which he purported to make.
Mr King accepts that there was no formal delegation to Mr Fuller by the Council. He does not argue that an oral delegation would be sufficient. He submits, however, that such decisions are in practice made by planning officers. He points out that, given the tight time limits, it would be unrealistic to expect a planning committee or the Council to become involved in this kind of decision. He further submits that such a decision should be classed as a "procedural decision" and one which it is therefore proper for the planning officer to reach notwithstanding the terms of reg. 9. Mr King points to other decisions made by planning officers under the provisions of the Town and Country Planning (General Development Procedure) Order 1995 and in particular reg. 10. On behalf of the applicant, Mr McCracken submits that this decision is an important one and, if the local authority wishes to delegate the power to take the decision, then it should do so in a formal manner. He points out that a local authority might decide, for example, that a planning officer should follow certain procedures in those cases which arguably have a significant effect on the environment. A planning officer might, for example, be required by the local authority to explain why, in his or her view, the applicant should not be required to submit an environmental statement or might be required in particular cases to put the matter before a planning committee.
I prefer the submissions of Mr McCracken. There can be no doubt that the decision whether or not to require an applicant to submit an environmental statement is an important one. That decision having been made and not being "over-turned" by the Secretary of State, the more rigorous procedures of the assessment of environmental effects of the Town and Country Planning (Assessment of Environmental Effects) Regulations come into play. If the local authority wishes to delegate the reg. 9 decision to an officer, it must formally do so. It having not done so, Mr Fuller's decision, must be quashed unless, as Mr King submits, this Court were to exercise its discretion not to do so.
Mr King submits that the planning committee would have reached the same conclusion as Mr Fuller if it had had to decide whether an environmental statement was required. Furthermore, he submits that, even if such a statement had been required, the local authority would, in any event, have granted planning permission. He relies on, amongst other cases, Dido Berkeley v. Secretary of State for the Environment and Fulham Football Club (CA)  P.L.C.R. 97.
Mr McCracken does not accept those submissions and submits further that Mr Fuller's decision was, in any event, Wednesbury unreasonable and that he wrongly placed too much reliance on Circular 15/88. Alternatively, he submits that, the Directive being directly effective (a proposition not challenged by the respondent), both the decision of Mr Fuller and that of the planning committee should be quashed as being in breach of Community law. He would have wished to argue that, under Community law, a decision-maker must, in circumstances like these, give reasons to enable the citizen and a reviewing court to be satisfied that the proper considerations have been taken into account. He accepts that the decision of the Court of Appeal in R. v. Secretary of State for the Environment, Transport and Regions ex parte Marson  J.P.L. 869 prevents him from advancing that argument, at least before me. I note that the Directive has now been amended by Council Directive 97/11/EC and that Article 9 of the Directive has been amended to provide that "the main reasons and considerations on which a decision [to grant or refuse development consent] is based" must be made available to the public.
I shall start by considering the submission that Mr Fuller's decision was Wednesbury unreasonable and that he placed too much reliance on the Circular.
On the 2nd June 1997 Mr Fuller and other planning officers met to decide whether the information provided by Greene King was adequate to enable the consultation process to be undertaken. In his affidavit (para. 3.2, 1/87), he states "I do not recollect whether the question of the need for EA was raised at this meeting but it is a matter to which I gave subsequent consideration as case officer for the application." Mr Fuller has now set out in that affidavit his decision and his reasons for reaching it.
4.5 The planning application for the access road was submitted without a formal environmental statement. Whilst my involvement in pre-application discussions had given me a prior insight of the scheme, it was part of my duty on receipt of the application to determine whether the proposed development required EA. I considered the application in detail on the 2nd June 1997 following the adjournment of the Development Control Officers meeting [on that day] ¼ . Having had the opportunity to read in full the text of the supporting documents relating to environmental matters, I obtained an understanding of the nature and purpose of the proposed development and its likely environmental effects. It was as a result of this evaluation on 2nd June that I formed the opinion that the proposal did not constitute either a Schedule 1 project, or a Schedule 2 project for the purpose of the 1988 Regulations because it was not likely to have significant environmental effects.
4.6 My assessment of the application in terms of whether EA was required, and my decision that it was not, was based on my knowledge of the background to the contents of Greene King's planning application; the planning status of the site as part of an Important Open Area and a local wildlife site; and my understanding of the 1988 Regulations and Circular 15/88, ["the Circular"] ... . It was also based on a knowledge of the locality arising from living and working in the town since 1974.
4.7 I took the view that the new access road clearly did not fall within the indicative criteria and thresholds for ‘local roads' given in Appendix A to the Circular. The proposed road is only about 250 metres in length, is a private access road and is located more than 100 metres from the nearest residential property. Nor in my judgment did the proposal fall into any of the three types of case described in the Circular. The road:
(i) was not of more than local importance. Its impacts were likely to be confined to the development site itself and its immediate environs;
(ii) was not in a particularly sensitive location of the kind to which reference is made in paragraphs 24 and 25 of Circular 15/88;
(iii) did not have any unusually complex and potentially adverse effects.
4.8 In short, I took the view, which I maintain, that the road was not likely to have significant environmental effects, and therefore that EA was not required.
4.9 Although the application did prove to be controversial and gave rise to objections from members of the public, the volume and strength of opposition to the anticipated effects of a scheme does not, as paragraph 21 of Circular 15/88 indicates, signify that a development constitutes a Schedule 2 project. I consider that the environmental information supplied by Greene King as part of the application, as had been requested by myself and Mr Massey, was sufficient to enable the public, other interested parties, officers and Members of the Council to consider fully the likely effects of the project. The information submitted with the application included a description of the road and its likely environmental implications. Consideration was given to options for the location of the junction. The need for landscaping works and measures to enhance the nature conservation value of the area remaining after the development were also addressed." (1/87-90)
Mr McCracken relies upon a number of matters in support of his submission that Mr Fuller's decision was Wednesbury unreasonable. He points to the fact that according to the notes of a meeting held on the 15th January 1997 between David Hicken Associates, the lead agent for Greene King, and Mr Fuller and his senior planning officer, Mr Massey, the Director of Planning and Transportation. The notes (1/95) show Mr Massey saying that the road needed "to be justified on ability to minimise environmental impact/maximise environmental benefits." Mr Massey referred to the link as being "highly sensitive locally", that the "impact on water meadows considered very important" and "planning policy needed to be overcome by full statement on alternatives." According to paragraph 2.4 of his affidavit Mr Fuller states (1/85):
"The sensitive nature of the proposal, the need for a clear justification for the proposal and an assessment of alternative routes and of the likely environmental effects of the proposal, were all raised with Greene King."
Mr McCracken also relies upon Mr Fuller's knowledge on 2nd June as revealed by material some of which did not come into existence until later. Mr King does not argue that that material should not be taken into account. Mr McCracken draws attention to an advertisement issued by the Council on the 6th June 1997 above the name of Mr Massey. In the advertisement, Greene King's application for planning permission was described as "a major development, does not accord with Development Plan, will affect a public right of way and trees protected by a Tree Preservation Order". (1/24) (See also Mr Massey's notes 1/124) Mr McCracken refers to Mr Fuller's report for a meeting on the 6th November 1997 of the planning committee. In that report Mr Fuller recommended that the planning permission be refused. (1/24A-35) In paragraph 4.9 and 4.10 of his affidavit (1/90), he wrote:
"4.10 I was the author of the Planning Officer's November 1997 Report to Committee about the application (exhibit LW1 to Linda Walton's Affidavit, pp.2-21). In the Report I expressed the view that the scheme would be contrary to Local Plan policies and would be sufficiently harmful in a local context to warrant being recommended for refusal. I considered that the proposal would intrude into an undeveloped area having amenity value and which was crossed by a well used footpath/cycleway network. My recommendation was reached after careful evaluation of all issues. I concluded that the impact of the development on the locality was not outweighed by the benefit that would accrue to the town centre by the reduction in brewery traffic using historic streets.
4.11 This recommendation was not accepted by Members at the meeting of the Borough Planning Committee on 6th November 1997. The Committee visited the site on the morning of the meeting and following a subsequent discussion of the application it was resolved (LW1 pp.22-23) that the vehicular link from the brewery to Cullum Road be supported in principle but a decision be deferred whilst the applicant was given the opportunity to address various matters. These included measures to mitigate the impact of the development."
His report for the November 7 meeting contained a "summarised reasons of objection" (1/30):
"the development will spoil the approach to the town. This open space contributes to the character of the town;
the value of maintaining open spaces about the town is more important that the objective of reducing traffic by constructing new roads. The proposal would result in the irreplaceable loss of part of a green buffer zone. The areas of open space about the town are already small and precious but are an important part of the urban fabric;
the scheme would be visually intrusive, ruining an area of ancient meadows which is of considerable amenity value;
the wildlife using the area may not be unique but is regarded as being very precious so close to the town centre;
the roadway would create dangers for the public with traffic crossing a well used public footpath and newly created cycleway. It would be contrary to proposals which seek to encourage people to walk/cycle as an alternative to using the motor car;
the access would not remove all Greene King traffic from historic streets. Premises on the northern side of Westgate Street would still need to be serviced;
the proposal would lead to congestion, queuing and delays on Cullum Road;
the land is floodplain and therefore unsuitable for an access road to supply a major industrial site;
the meadows are designated in the Local Plan as an important open area that should be safeguarded. The proposal would be contrary to those provisions;
pressures for new road infrastructure development in the town has been considerable in recent years. The proposed Holywater Meadows Link Road has only recently been shelved due to its environmental impact and there is a fear that the Greene King scheme may create a precedent for other proposals to be reconsidered. Approval of the scheme may lead to requests for a new access to the Hardwick Industrial Estate from Cullum Road. There may also be requests for development on other Greene King land which abuts the site of the new road;
the access road could make Greene King attractive to a predator and ripe for take-over;
another route for access to the brewery could be found e.g. it has been suggested that the existing access next to Peatlings off Westgate Street could be used;
Greene King should consider relocating some of its facilities elsewhere in the town e.g. onto allocated land where long term expansion would be made easier."
In the report Mr Fuller summarises the policy of the Suffolk County Structure Plan which stresses that the protection and enhancement of the environment will normally be given the highest priority. He summarises the Local Plan Allocations and notes that the site of the road "is included within an ‘Important Open Area' i.e. an area which makes a significant contribution to the character and appearance of a settlement. Development in these areas will be firmly resisted (Policy CT1A)". (1/31) He notes that the site is also included "with Lark and Linnet Valley area where development will not be permitted with particular regard being given to the conservation of sites of recognised archaeological and historic interest, wildlife habitats and the encouragement of informal recreational uses (Policy RT17)". (1/31) Policy CT1, he noted, "provides that the Council will seek to preserve and enhance the character of Bury St. Edmunds giving special consideration to areas of archaeological or historic interest". (1/31)
According to the report, the county archaeologist had noted that the area was one of archaeological importance and that the roadway would pass over areas of water meadows which are likely to have been in use since the early medieval period and can be expected to contain evidence of early drainage and water management systems. The county archaeologist had recommended that archaeological work should take place before any development. (1/29)
Mr Fuller referred to the "clear presumption against development being carried out in an important open area". (1/33) He wrote:
"The meadows are of historic and strategic importance to the old core of the town and contribute to the setting of the Conservation Area. They defined the southern flank of the historic settlement and acted as a natural means of defence. Today the meadows provide a zone of separation from 20th century development beyond, lend meaning to the historic development of the town and emphasise the route of a principal watercourse. The tranquillity of this important open space is valued by many especially by those who walk and cycle along the footpath network across the meadows." (1/33)
He pointed out that the meadows had considerable amenity value which had been recognised by the Inspector at the Local Plan Inquiry. (1/33) The Inspector had written of the Holywater Meadows:
"... I think the meadows have considerable amenity and environmental value for local residents and contribute to the setting of the town centre and the conservation area, as well as having historic associations and potential archaeological value." (1/33)
He noted that the ecological assessment prepared by Robert Stebbings Consultancy "makes no reference to the fact that the site is part of a designated Local Wildlife Site in the Bury St. Edmunds Wildlife Audit or to the Council's adopted Nature Conservation Strategy (SPG No. 8)". (1/34) He pointed out that there is a short-coming in the report in that it contains "no perspective of the importance of the meadows in terms of local habitats and the network of wildlife sites and corridors that exist around the town." (1/34) He points to the need to exercise care "to ensure that recognised areas of natural conservation interest are not fragmented." It is clear form his report that he was concerned about the effect of the proposed road on the "corridor" which would be cut into two by the road. He wrote that under NCS 17:
"The Local Planning Authority will not allow development which would destroy, sever or cause significant adverse effects on a wildlife link or corridor." (1/32)
In recommending that planning permission be refused, he summarised the reasons:
"1. The application proposes the construction of a roadway across an area of meadows which are of value to the setting of the historic core of the town and which, because of their undeveloped nature, are an important amenity feature that contains a network of footpaths and cycle routes. Established planting contributes to the environmental value of the area. The importance of the meadows is recognised by being allocated in the amended Deposit Draft of the St. Edmundsbury Borough Local Plan as an ‘Important Open Area' within the valley of the River Linnet where in accordance with Policies CT1A and RT17, development will be resisted. The proposal would be contrary to those policies and to the objective of the Suffolk County Structure Plan which seeks to protect the environmental qualities of the Suffolk landscape through the control of development.
2. The proposed works, by reason of their encroachment onto the meadows, the loss of trees together with the nature and form of the roadway, would intrude within the landscape in a manner that would have an adverse environmental impact on the character and appearance of the locality. The scheme would also lead to the fragmentation of an area of nature conservation interest which has been identified in the Borough Council's strategy for nature conservation contained in SPG No. 8.
3. Existing footpaths/cycleways would be severed making them less desirable to the public by detracting from their recreational value and by reducing their purpose as an alternative attractive route to and from the town centre for pedestrians and cyclists.
There are passages in the report where Mr Fuller comments on the advantages of moving traffic out of the town. Mr King accepts that at the stage of deciding whether or not the development is likely to have significant effects on the environment, the decision-maker is not entitled to put into the balance any advantage of this kind. When deciding whether to grant planning permission the whole picture can be examined. He submits that the decision-maker may take into account the "mitigating measures" proposed by the applicant for planning permission. Mr McCracken submits that he cannot. He submits that the fact that the planning application seeks to mitigate the effects on the environment is not relevant at this stage. I accept the submission of Mr King. Albeit that the decision-maker must be careful at this early stage, it would seem wrong to prevent him from taking into account mitigating measures within the planning application.
The thrust of Mr McCracken's submissions may be stated thus: given Mr Fuller's views as expressed in the report for the November 6 meeting, it is not possible for him to have reached any other conclusion than that the proposed road would "be likely to have significant effects on the environment".
In a report by the archaeological service-conservation team of Suffolk County Council in March 1998 the area is described as having "probably been undisturbed grassland for centuries". In addition to a cycleway along the side of Cullum Road, there is a footpath known as Friar's Lane. In the March 1998 report it is described as "a raised causeway between two ditches" shown on Warren's map and "likely to be of some antiquity". According to the report it is probable that the causeway is "a contemporary part of the meadow drainage" and "there is a further possibility that the causeway relates to the southern defences of the town". As the report points out "the ditches and causeway of Friar's Lane will be cut and substantially damaged by the new roadway and new culverts for the ditches." (1/151)
Mr McCracken also relies on a report of a Philippa Eve (1/146) in which it is argued that the ecological assessment in the Stebbings Report is deficient in a number of respects. In her opinion the report is not "comprehensive", there is little "confirmed evidence", it does not include a "comprehensive bird survey", and notes that "comprehensive bird, aquatic, invertebrate and terrestrial invertebrate surveys were not undertaken". Mr McCracken also relies upon the presence of a "very large and old crack willow ... with several holes one of which appeared to be used by bats." (2/44) The particular tree is marked on the plan albeit it was not clear whether that tree would or would not survive the road. According to the Stebbings report, efforts should be made to "protect this tree and its root stock" and "if this tree is to be lost, English Nature would need to be notified of the identified bat roost hole and they will need to approve the careful removal of this hole [sic] prior to cutting down the tree". (1/48) There is also a reference in the report to the presence of another protected species, namely Great Crested Newts.
Mr McCracken submitted that once species protected by the Habitats Directive (92/43/EEC) have been found then that in itself would be sufficient for the decision-maker to conclude that it would be likely that the development would have significant effects on the environment. Article 12 provides that member states shall take the requisite measures to establish a system of strict protection for the Annex 4 species (it was assumed that the bats and newts identified by the Stebbings report were within that category). That system must prohibit deliberate disturbance of the species and destruction of breeding sites or resting places. Although Mr McCracken submitted that that was an absolute bar on any deliberate disturbance or destruction, that is not how it is interpreted in the Conservation (Natural Habitats etc.) Regulations 1994 (SI No. 2716), being the regulations that seek to transpose into British law the requirements of the Habitats Directive and, in particular, reg. 40 thereof. I cannot accept Mr McCracken's submission that all deliberate destruction is forbidden under the Directive, even if, by the taking of remedial methods, other breeding sites or resting places may be created. I do accept, however, that the effect on protected species is a matter to be taken into consideration when deciding whether an environmental statement should be required.
Mr McCracken relied on a number of other matters: the lack of knowledge as to the number and type of vehicles which would use the proposed road; the fact that important matters relating to the design of the road had not been resolved (see 2/91-93) so that it was not possible to decide what environmental effect the road might have; and the failure to deal with the problem of flooding.
He attacked Mr Fuller's reliance on the Circular, which he submitted did not accurately reflect the legal position. I shall deal with that submission briefly. The full text of the Circular may be found at 2/97. Although the Circular offers guidelines, the Circular stresses that the test is whether or not a project is likely to give rise to significant environmental effects (see e.g. paras. 18, 21) and that it is "not possible to formulate criteria or thresholds which will provide a simple test" (para. 30). Given that the Circular makes this clear, it cannot be said to be an inaccurate reflection of the law and Mr Fuller was entitled to take it into consideration.
Mr King submitted that it could not possibly be argued that Mr Fuller's decision was Wednesbury unreasonable. Many of the concerns being raised by Mr Fuller could adequately be dealt with by imposing conditions. He pointed out that, as Mr Fuller had written in the report, various bodies consulted by the planning officers had supported the proposed road. The Bury St Edmunds Conservation Area Committee generally accepted the need for the road. A substantial majority of the members of the Bury St Edmunds Society supported the provision of the new road, albeit expressing considerable regret "about the damage the new road would cause". The Suffolk Preservation Society supported "the care that the applicant has shown for the natural environment", pointing out, however, that "a number of areas appear to be contrary to policy" (1/28). English Nature did not object to planning permission "subject to a requirement that all ecological recommendations are implemented". However, two other bodies were less impressed (Suffolk Wildlife Trust and the Lark Valley Association) (1/29). Mr King pointed to the various steps that could be taken to reduce the environmental impact. He also relied on the fact that, following a letter from the solicitor for the applicant and following a re-consideration of the matter just before the meeting of January 8, Mr Fuller reached the same conclusion as he had done in June of the year before. (1/92)
I have not found the decision an easy one to reach. The principal reasons why Mr Fuller thought that the road was not likely to have "significant" effects on the environment can, I believe, be found in para. 4.7 of his affidavit, which I have earlier quoted in full and which themselves are based on the Circular. One of the three reasons set out in that paragraph and, I believe, relied upon by him , gives me the most cause for concern. He expressed this reason in the following way:
"The road ¼ was not of more than local importance. Its impacts were likely to be confined to the development site itself and its immediate environs."
Para. 20 of the Circular (1/100) states that environment assessment will be needed for many projects which are of more than local importance and, in conjunction with para. 21, could be read as implying that it will not be needed for projects which only have local importance. My concern is that Mr Fuller was attaching too much weight in deciding whether the effect is "significant" to the fact that the road is, in one sense, only of local importance, that is to the inhabitants of Bury St Edmunds. A road may have a significant effect albeit that its effect is local in this sense.
Notwithstanding this reservation and with some hesitation, I conclude that the decision not to require an environmental statement cannot be described as Wednesbury unreasonable. A planning authority acting reasonably and applying the correct test to the facts of this case would be entitled to reach the conclusion that it was not likely that the effects on the environment of the proposed road would be "significant".
However and contrary to the submissions of Mr King, I have no doubt that, if the decision had been made to require an environmental statement, then that decision would also have been Wednesbury reasonable. I do not accept his submission that no planning authority would ever have required such a statement.
If such an assessment had been made, the result of the planning application would not necessarily have been the same. I take into account that, at the meeting of 8 January 1988, the planning committee was made aware of the argument of the solicitor for the applicant that there should have been an environmental assessment and, nonetheless, granted conditional planning consent. However, the planning committee did not have the same "environmental information" as it would have had if such a statement had been required. One of the dangers of a planning application which, like this one, presents two choices-- "new road" or "heavy lorries continuing to use old town" -- is that, in the absence of a thorough environmental assessment of the "new road", it is too easy to choose "new road". I decline therefore to exercise the discretion which Mr King invites me to exercise.
In those circumstances it is not necessary to consider Mr McCracken's submission that the decision of Mr Fuller and that of the planning committee should be quashed as being in breach of Community law and, in particular, of the Directive.
For the reasons which I have given, the applicant succeeds and the two decisions are therefore quashed.
ORDER: Application allowed. Respondent to pay applicant's costs save for the costs incurred by the applicant in obtaining the injunction. Legal aid taxation.
(Order not part of approved judgment)