R (Wye Valley Action Ass) v Herefordshire Council

Transcript date:

Wednesday, January 26, 2011

Matter:

Court:

Court of Appeal

Judgement type:

Substantive

Judge(s):

LJ Rix, LJ Smith, LJ Richards

Transcript file:

Neutral Citation Number: [2011] EWCA Civ 20

Case No: C1/2010/0220
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Ian Dove QC (sitting as a Deputy High Court Judge)
[2009] EWHC 3428 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/01/2011
Before :

LORD JUSTICE RIX
LADY JUSTICE SMITH
and
LORD JUSTICE RICHARDS
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The Queen (on the application of Wye Valley Action Association Limited) Respondent/
Claimant
- and -
Herefordshire Council

and
The National Farmers' Union Appellant/
Defendant

Intervener
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Richard Kimblin (instructed by Herefordshire Council) for the Appellant
James Pereira (instructed by Richard Buxton Environmental and Public Law) for the Respondent
Timothy Straker QC (instructed by National Farmers' Union) for the Intervener

Hearing date : 25 November 2010
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Approved Judgment

Lord Justice Richards :

1. The main issue in this appeal is whether Herefordshire Council was entitled to conclude that development consisting of the erection of polytunnels for soft fruit production on existing farmland in an Area of Outstanding Natural Beauty ("AONB") in the Wye Valley did not fall within the description "projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes" in paragraph 1(a) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations") and did not therefore require an environmental impact assessment ("EIA") pursuant to those regulations.

2. The issue arises in proceedings brought by the Wye Valley Action Association Ltd ("the Association"), a company limited by guarantee which has among its objectives "to promote the conservation, protection and improvement of the Wye Valley Area of Outstanding Natural Beauty (AONB) and to further the interests of the Company's members and other individuals, groups or bodies opposed to perceived inappropriate development in or adjacent to the AONB ...". The Association brought a challenge by way of judicial review to the council's grant of planning permission for the development. It succeeded before Mr Ian Dove QC, sitting as a deputy High Court Judge, who held that the council had erred in law in finding that the development did not require an EIA, and that the error should lead to the quashing of the planning permission.

3. The council appeals against the deputy judge's order. The National Farmers' Union ("the NFU") has intervened to make common cause with the council, submitting that the deputy judge's decision was wrong and would have adverse consequences for agriculture in the United Kingdom. The Association, as respondent to the appeal, seeks to uphold the judge's decision.

The facts

4. The case arises out of an application for planning permission for the use of polytunnels at Homme Farm in the Wye Valley. The following description of the site is given in the council officer's report to which I make further reference below:

"Homme Farm is located approximately one kilometre to the south-west of Ross-on-Wye, on land enclosed along its western edge by the River Wye. The whole of the application site is located within the open countryside and within the Wye Valley Area of Outstanding Natural Beauty (AONB). The application site comprises 377 hectares of land that extends eastwards, from the River Wye, towards the B4234, the Ross-on-Wye - Walford road.

The Council's Landscape Character Assessment identifies part of the site that comprises the floodplain of the River Wye as Riverside Meadows with the remainder of the site being described as Principal Settled Farmlands. The area is of significant landscape and built historic interest: Hill Court is a listed building and registered garden and Old Hill Court is a listed building and unregistered garden. There are a number of other listed buildings within the application site. In addition, Goodrich Castle, a Scheduled Ancient Monument (SAM), occupies a spur of land to the south, and overlooks the application site. The site abuts the River Wye Special Area of Conservation (SAC) and Site of Special Scientific Interest (SSSI). Parts of the site are within the floodplain of the River Wye. Various Public Rights of Way cross and provide views towards the application site."

5. The farm is run as part of a larger farming business operated by EC Drummond & Son and is used for the production of soft fruit, arable crops and turf, grown in rotation. Polytunnels have been in use for soft fruit production on the farm for some years. They extend the growing season and improve the overall quality of the harvested fruit. The perceived need for planning permission to allow a continuation of that use followed a High Court decision in 2006 that the erection of polytunnels can amount to development (R (Hall Hunter Partnership) v First Secretary of State and Waverley Borough Council [2006] EWHC 3482 (Admin)) and the dismissal in 2008 of an appeal against an enforcement notice issued by the council in relation to the use of polytunnels on another farm in the Wye Valley.

6. The application was for permission "to continue to erect, take down and re-erect polytunnels rotated around fields as required by the crops under cultivation". Out of the total farm area of 377 hectares, the proposal was to use only 225 hectares for the rotation of polytunnels, with no more than 54 hectares to be covered by polytunnels at any one time and with a limit of 10 hectares on the coverage in any single block. The remaining area of 152 hectares was not to be used at any time for polytunnels, for a variety of landscape, amenity, environmental and operational reasons. That area included the meadows next to the River Wye.

7. On 19 August 2008 the council adopted a screening opinion under the 1999 Regulations to the effect that an EIA was not required. It stated that the proposed development was not listed in Schedule 1 or in Schedule 2 and, under the heading "Screening Opinion", it gave the following by way of reasons:
"The application involves the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production)"

8. A witness statement of Mr Simon Withers, the council officer responsible for the screening opinion, expands a little upon that reasoning. Mr Withers states (at para 10):

"The proposal was considered as to whether it was a project for the use of uncultivated land or a semi-natural area. I concluded that the land was, and had been, actively farmed and that it was therefore cultivated land and not a semi-natural area. Consideration was also given to whether the development was for intensive agricultural purposes. I concluded that the use of the land for the erection, taking down and re-erection of Spanish polytunnels on a rotational basis for the growing of soft fruit in the ground did not amount to an intensive agricultural activity."

9. Although the council decided that an EIA was not required, a large body of environmental information was included in the material taken into account by the council in reaching its decision to grant planning permission. The officer's report for the planning sub-committee was a lengthy document. It referred to the documents supporting the application, which included a landscape and visual assessment, a drainage appraisal, a water resources risk evaluation and an ecology survey. It reported on the responses of statutory consultees, including Natural England, which had originally objected with reference to the effect on the AONB but had withdrawn that objection in the light of recommended planning conditions. It referred to internal advice within the council, including that of a landscape officer who had visited the site in order to assess the visual impact of the proposed development. It summarised the representations, including those of the Association and other bodies which had expressed serious concern about the scale and landscape impact of the proposal.

10. The officer's report identified three main issues for consideration, the first two of which were (i) the effect of the polytunnels on the natural beauty of the landscape and the countryside of the Wye Valley AONB and the weight to be attached to the benefits of the polytunnels in terms of the quantity and quality of the soft fruit produced, the contribution made to the rural economy and the substitution of locally grown fruit for imported fruit; and (ii) the effect of the polytunnels on the setting of various listed buildings and Goodrich Castle. Those issues were the subject of appraisal over several pages of the report. I will not set out the detail, but it was a careful analysis along conventional lines, examining the pros and cons of the proposal within the framework of relevant planning policies.

11. The report recommended that planning permission be granted subject to numerous conditions. The recommendation was accepted by the planning sub-committee and planning permission for the development was granted on 15 October 2008.

The legal framework

12. The EIA regime is governed by Council Directive 85/337EEC (as amended) on the assessment of the effects of certain public and private projects on the environment ("the Directive"). The 1999 Regulations give effect to the Directive in domestic law in so far as concerns development for which planning permission is required. The Environmental Impact Assessment (Agriculture) (England and Wales) (No.2) Regulations 2006 ("the 2006 Regulations") lay down a corresponding regime for certain agricultural projects that fall within the scope of the Directive but do not require planning permission and are therefore not covered by the 1999 Regulations. The present case is governed by the 1999 Regulations but I will also need to refer to published guidance on the 2006 Regulations.

13. The basic scheme of the 1999 Regulations, so far as material, is to require the developer to submit an EIA where the development for which planning permission is sought is an "EIA development", and to require the local planning authority not to grant planning permission for the development unless it has first taken the EIA into consideration. There is a process whereby the developer can obtain a "screening opinion" from the local planning authority as to whether the proposed development is an EIA development or not.

14. Regulation 2 defines "EIA development" as "development which is either (a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location". It is not suggested that the development in this case is Schedule 1 development. The only category of Schedule 2 development now relied on by the Association is that in paragraph 1(a), namely:

"Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes"
where the area of the development exceeds 0.5 hectare.

15. It is not in dispute that the 1999 Regulations are to be read in a way which gives effect to the Directive. In itself, however, that takes matters no further since the description "Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes" is identical to that in paragraph 1(b) of Annex II to the Directive. It is also common ground that the Directive has a wide scope and a broad purpose, and that the categories of development in Schedule 2 to the 1999 Regulations, like the corresponding categories in Annex II to the Directive, are to be interpreted accordingly: see Case C-72/95, Kraaijveld v Gedeputeerde Staten van Zuid-Holland [1997] Env LR 265, paras 28-32, and Case C-142/07, Ecologistas en Acciòn-CODA v Ayuntamiento de Madrid [2009] Env LR D4, paras 27-34.

16. The screening process is governed by regulations 4 to 6. I do not need to give the detail, since the only question in this case is whether the council's decision that the proposed development did not fall within paragraph 1(a) of Schedule 2 was a lawful decision. As to that, all parties accepted the correctness of the approach laid down in R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140, in which Buxton LJ, with whom the other members of the court agreed, stated at para 8:

"In the present case, the only serious contender for a category of sch. 2 development under which the application might fall is para. 10(b) of the schedule: infrastructure projects that are urban development projects. These are very wide and to some extent obscure expressions, and a good deal of legitimate disagreement will be involved in applying them to the facts of any given case. That emboldened Lewisham to argue, and the judge to agree, that such a determination on the part of the local authority could only be challenged if it were Wednesbury unreasonable. I do not agree. However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgment. Rather, it involves the application of the authority's understanding of the meaning in law of the expression used in the Regulation. If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error; and in determining the meaning of the statutory expressions the concept of reasonable judgement as embodied in Wednesbury simply has no part to play. That, however, is not the end of the matter. The meaning in law may itself be sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions may be legitimately available. That approach to decision-making was emphasised by Lord Mustill, speaking for the House of Lords, in R v Monopolies Commission, Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 at p.32G, when he said that there may be cases where the criterion, upon which in law the decision has to be made:

‘may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.'"

17. Had the council concluded that the development fell within paragraph 1(a) of Schedule 2, it would have had to go on to consider whether the development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location. In the event, that question did not arise for decision and I need say no more about it.

Relevant guidance

18. The European Commission has issued guidance on the interpretation of certain project categories in Annexes I and II to the Directive. The introduction to the guidance states that experience in the application of the Directive shows that in practice it can prove problematic to decide if individual projects fall within its scope: not only have Member States interpreted certain project categories in different ways, but uncertainties in the interpretation of certain project types also frequently arise among competent authorities. The document aims to reduce the uncertainty so as to ensure that those projects likely to have significant effects on the environment do not fall outside the scope of the Directive owing to issues of interpretation. The objective of the guidance is twofold: first, "the document aims to improve understanding of what can be reasonably considered to be covered by certain project categories that have proved particularly difficult to interpret in practice"; secondly, it is intended to provide an overview of existing useful sources of information at EU level. The document "represents the views of the Commission services and is not of a binding nature", and it may be revised in the future on the basis of further experience.

19. In relation to the category "Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes", the guidance document states as follows:
"The decision as to which specific agricultural practices and which types of areas fall within this project category is bound to vary between Member States, given the variety of land uses and agricultural practices in different parts of Europe. Some countries have included lists of relevant agricultural practices and habitats in national guidance documents in order to clarify how this category should be interpreted.
...
The term ‘uncultivated land' is considered to include all areas that are not agriculturally managed at the time of assessment. However, land areas (fallow land, permanent pastures or meadows) that are temporarily taken out of production but are still counted as Utilised Agricultural Areas shall not be considered as ‘uncultivated land'.
The definition of what constitutes semi natural areas will vary from one Member State to the next, given that it relates to the adjudged value of different areas which occur throughout the EU. In this context, the term 'value' will certainly include the nature conservation value of an area, but will also include, where relevant, other valued environmental factors. For example, the concept of semi natural areas may be associated with their landscape and/or archaeological value.

The term 'semi natural' indicates that even areas where there has been some degree of human intervention, which prevents an area from being 'natural', will fall within this category, regardless of the moment in time when the human intervention took place. In many Member States, the term 'semi natural' is likely to be applicable to large parts of the country area, although the extent of management will vary.

The definition of which areas should be considered 'semi natural' may, in practice, depend upon a wider evaluation of the role of habitats and areas or features of high biodiversity interest in the wider countryside (such as ponds, small wetlands, ancient hedgerows, patterns of tree cover) by the competent authority or authorities responsible for nature conservation designations or biodiversity in the Member States. Other potentially relevant environmental factors may have to be considered by other authorities those responsible, for example, for landscape designations or protection of archaeology. There is therefore some margin for discretion, but the main emphasis should be on identifying those areas which reflect natural conditions and which have some intrinsic nature conservation or other environmental value which would be lost by agricultural management proposals employed to permit intensification of agricultural practices.

One key indicator for potential habitat types that may fall within the concept of ‘semi-natural areas' of high conservation value will be the habitat types and the habitats of species that are identified under the Habitats and the Birds Directives. Other designations, for example in relation to landscape features, will also be relevant ...."

20. Guidance issued by the Secretary of State on the 1999 Regulations, in Circular 02/99: Environmental Impact Assessment, contains nothing material to the present case. There is, however, material guidance in relation to the 2006 Regulations from Natural England, the competent national authority under those regulations. That guidance was published in October 2006 and revised in February 2007. The reason why I consider it to be material even though it relates to different regulations is that the two sets of regulations constitute implementation, for different situations, of the same provisions of the Directive and should therefore be given, so far as possible, an interpretation that is consistent inter se and with the Directive. There may have been thought to be a greater need for guidance in relation to the 2006 Regulations because the carrying out of a relevant project in breach of the regulations constitutes a criminal offence (regulation 22) and may involve sanctions under the Common Agricultural Policy single payment and support schemes (regulation 37), whereas the normal methods of enforcement of planning control operate in cases to which the 1999 Regulations apply. That does not mean, however, that the guidance lacks relevance in the context of the 1999 Regulations.

21. The 2006 Regulations are expressed to apply inter alia to "uncultivated land projects", defined in regulation 2 as "a project to increase the productivity for agriculture of uncultivated land or a semi-natural area ...". By the same regulation, "uncultivated land" means land which has not been cultivated in the last 15 years, and "cultivated" means cultivated by physical means (including ploughing or harrowing) or chemical means (including the application of fertilisers). Thus the meaning of "uncultivated land" is given by the 2006 Regulations themselves, though the guidance does provide additional information on what may be considered to be physical or chemical cultivation.

22. It is in relation to the expression "semi-natural areas", which is not further defined in the 2006 Regulations, that the guidance is particularly useful. It states (with original emphasis):

"19. Most semi natural areas will qualify as uncultivated land. However, some semi natural areas may have been subject to low levels of cultivation (e.g. some semi natural hay meadows and wetland may have been subject to low levels of farmyard manure). The types of land considered to be semi natural are described at Annex 1. In summary they are:

Species-rich hay meadow (upland and lowland)
Unimproved grassland (including calcareous, acid and neutral grassland) 
Coastal and floodplain grazing marsh 
Scrub consisting of self seeded wild shrubs and trees 
Fen, marsh and swamp Dwarf shrub heath (i.e. moorland and heathland) 
Peat bogs 
Bracken 
Land above the tree-line i.e. usually over 600 metres above sea-level 
Standing water and canals

20. Semi natural areas are defined largely by the plants and wildlife they support (Annex 1 gives more detail). Often they will not have been subject to active cultivation for many years. However, they may in the last 15 years have been subject to:

low levels of physical cultivation (e.g. chain harrowing may have caused some disturbance of soil, but there will not normally have been any sub surface cultivation such as ploughing, discing or heavy harrowing);
low levels of chemical cultivation (e.g. to replace nutrients lost through hay cutting or water leaching, as often happens in the traditional management of semi natural meadows and wetland)."

23. Annex 1 is headed "Types of land considered to be semi-natural areas" and gives a fuller description of each of the types identified in the text of the guidance at para 19. It gives the source on which the descriptions are based and indicates where further details can be found. It also contains the following important statement:

"All ‘Arable and Horticulture' and ‘Built-up areas and gardens' are excluded from the semi-natural habitat definitions."

The deputy judge's judgment

24. The deputy judge said that the first matter to consider was whether the area within which the proposed development was sited was a semi-natural area. He referred to the guidance mentioned above and continued:

"37. In my view, the starting point in this connection is that in this context ‘natural' means untouched by man. It is well known that most of the landscapes of England have been subject to some extent or another to the hand of man artificially denaturing them through agriculture or through technological activity associated with settlement of the landscape. Semi natural land is land where there has been some interference with that landscape, but the natural qualities which preceded or continued alongside man's activities are still clearly and obviously evident in the natural environmental capital of the area.

38. This can be gauged by the statutory and other designations to which the land may have been made subject. It may include landscape and archaeological elements which, although man made, have, through the passage of time, become naturalised into the area and, therefore, valued as part and parcel of its natural environmental assets. Once more, the extent to which these landscape and archaeological elements are prized, and therefore contribute to whether or not an area is semi natural, can be measured by the environmental designations which they have attracted. Man's intervention in such areas may well be evident, but it will not have spoilt, and may even have complemented, the natural qualities which give the area its environment value.

39. During the course of the argument, reliance was placed by the defendant upon the fact that the land was, and still is, cultivated, and that this should have an impact on whether the land is semi natural. Obviously, the fact that there has been agricultural cultivation is a relevant factor, but it cannot, in my judgment, be determinative, because the language of the 1999 Regulations is ‘uncultivated land or semi natural areas'. That clearly contemplates that semi natural land may be cultivated and, therefore, the fact of cultivation cannot remove land from this category.

40. Whilst the guidance to which I have referred in relation to the 2006 Regulations refers to cultivation at a low level, that does not undermine the validity of the point I have just made. At Stage A the fact that land has been cultivated does not automatically exclude it from the status of being semi natural. This points up what appears to be, to my mind, a material misdirection in the Council's screening opinion, since it appears to suggest that because the land is already cultivated it is not listed in Schedule 2. That approach altogether excludes what is contemplated by the words of Schedule 2, that there could be a Schedule 2 project on semi natural land which had been the subject of cultivation.

41. To apply this approach to the present case the question of semi natural area needs to be assessed not simply by reference to the appeal site but to the site in its context. A site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB, overlooked by a Scheduled ancient monument, to my mind clearly comes within the definition of "semi natural area" as a matter of law. It is an area which has within it a significant number of designated sites, or areas, some of which are overlapping, and which are redolent of the high quality natural environment of the kind described in my earlier exposition of the term ‘semi natural'."

25. He went on to find that the development was a project "for intensive agricultural purposes". Taking this with the findings already set out, it led to his conclusion that the council had made an error of law in deciding that the development did not fall within Schedule 2 to the 1999 Regulations.

The issues

26. There are two issues in the appeal:

(1) whether, as found by the deputy judge, the council erred in law in deciding by its screening opinion that the development was not a project "for the use of uncultivated land or semi-natural areas for intensive agricultural purposes" within paragraph 1(a) of Schedule 2 to the 1999 Regulations; and

(2) whether the reasons given by the council for its screening opinion were inadequate in law.

27. The first issue is raised by the council's appeal. The second is raised by way of respondent's notice as an alternative basis on which the Association seeks to uphold the judge's order if the council succeeds on the first issue.

"Uncultivated land or semi-natural area": submissions

28. For the council, Mr Kimblin submitted that the description "uncultivated land or semi-natural areas" in paragraph 1(a) of Schedule 2 is imprecise and open-textured and that the same approach needs to be adopted in relation to it as was adopted in Goodman in relation to paragraph 10(b) of Schedule 2 (see para 16 above). The need to follow that approach is underlined by the fact that paragraph 1(a) is unique within Schedule 2 in requiring an evaluation of a specific site rather than simply describing a form of development: it requires an opinion to be formed by someone who is familiar with the site and its context. That is what was done in this case. The council did not misunderstand the meaning of the words "uncultivated land or semi-natural areas". Whether the description applied to the site on the particular facts was a matter for the council, and the court should not interfere with the council's decision unless it was outside the range of conclusions legitimately available or, in the words of Lord Mustill in the South Yorkshire Transport case, was so aberrant that it could not be classed as rational. The deputy judge failed to follow that approach. He did not find that the council's decision was irrational. He wrongly held that the site was a "semi-natural area" as a matter of law, thereby substituting his own conclusion for the careful and fully informed judgment of those on the ground.

29. Mr Kimblin also criticised the reasoning that led the deputy judge to his conclusion. Whether a project is for the use of a semi-natural area is a site-specific question and does not depend on what surrounds the site. Yet the judge relied on features of the surrounding area which are unrelated to whether the site is a semi-natural area. He referred to the adjoining SAC and SSSI; but the SAC is designated because of the presence of a particular species of crayfish in the River Wye, outside the application site, which can have no bearing on whether the site is a semi-natural area; and designation of the SSSI simply follows designation as an SAC. The deputy judge also referred to the fact that the site is overlooked by Goodrich Castle; but the presence of an ancient monument outside the application site, whilst a material planning consideration, is again of no relevance to whether the site itself is a semi-natural area. The fact that the site is within the Wye Valley AONB is of potential relevance, but the central focus must be on the state of the land, which in this case is extensively cultivated farmland. The council rationally concluded that such farmland, albeit within an AONB, was not a semi-natural area.

30. Mr Straker QC, for the NFU, submitted that the description "uncultivated land or semi-natural areas" seeks to convey a single idea, of land largely untouched by man, whether by cultivation or otherwise: paragraph 1(a) is aimed principally at new forms of agricultural activity over land, rather than at the continuation of established agricultural activity. The NFU is concerned about the wide-ranging implications of the deputy judge's reasoning. For example, the Cotswolds AONB extends to some 2,000 square kilometres and is an area substantially touched by human hand, but on the deputy judge's approach it could fall to be treated as a "semi-natural area", exposing farmers unexpectedly to the burdens of the EIA regime. On any account the deputy judge stepped over the line and trespassed upon the function of the local planning authority when he decided that a particular site in Herefordshire was a "semi-natural area" as a matter of law.

31. For the Association, Mr Pereira submitted that the deputy judge understood that he had to follow the approach in Goodman and did in fact follow that approach. His finding that the application site was a "semi-natural area" as a matter of law must be understood as a finding that that was the only reasonable conclusion open to the council on the facts. He understood that he was dealing with the features of a particular site, viewed in its context, on the basis of the evidence before him.

32. Mr Pereira then advanced submissions under four headings: (i) the Directive requires a broad and purposive approach to the words; (ii) taking such an approach, a decision-maker is required to have regard to features of the site and of the wider area that can be considered relevant to whether the site is semi-natural; (iii) the deputy judge's consideration of the facts was therefore lawful, and his conclusion was correct; and (iv) even if he took too broad an approach, the landscape qualities of the area are sufficient to show that the site is a "semi-natural area" as a matter of law. In developing those points, he submitted that the broad approach requires regard to be had to context and, in this case, to the effect of the proposed development on the AONB. The interpretation of "semi-natural areas" also requires account to be taken of nature conservation, landscape and historic monument designations both on the site and in the immediate locality. In so far as the guidance on the 2006 Regulations suggests otherwise, it is not directly in point and should not be assumed to be correct: the 2006 Regulations are based on a different approach from the 1999 Regulations and are themselves very odd, giving no proper consideration to "semi-natural areas". The AONB is relevant, and the impact of the proposed development on the natural features of the AONB is not negatived by the fact that the land has been in cultivation for many centuries: land can be intensively cultivated but still be semi-natural. The deputy judge's approach was entirely consistent with the European Commission's guidance and was correct.

33. A separate submission by Mr Pereira was that the deputy judge was correct to find in para 40 of his judgment that the council's screening opinion contained a material misdirection, namely that because land was already cultivated (or actively farmed, as Mr Withers puts it in his witness statement) it did not fall within paragraph 1(a). Regard was had only to whether the site was "uncultivated land", not to whether it was a "semi-natural area", and a consequence of the failure to consider that question led to a failure to take into account other relevant considerations, such as the significance of the AONB and the castle.

"Uncultivated land or semi-natural areas": discussion

34. Responsibility for determining under the 1999 Regulations whether a development for which planning permission is sought is an EIA development, including a decision on whether it falls within paragraph 1(a) of Schedule 2 as a project "for the use of uncultivated land or semi-natural areas for intensive agricultural purposes", lies with the local planning authority. The court's role is supervisory, to check that the decision was taken lawfully. The court must not take upon itself the function of primary decision-maker.

35. In determining the lawfulness of the council's decision in this case, the court must apply the approach laid down in Goodman (see para 16 above). I think that all parties were agreed on that, but it is in any event plainly the correct course. The description in paragraph 1(a) of Schedule 2 is inherently imprecise. The degree of imprecision is underlined by the Commission's guidance (paras 18-19 above), which effectively acknowledges that there is legitimate scope for differences of approach as between different Member States and even as between different authorities in a single Member State. It is therefore necessary to ask, first, whether the council correctly understood the meaning of the expression and, secondly, whether in applying the expression to the facts it reached a conclusion that was open to a rational decision-maker.

36. The reasoning of the deputy judge, in particular his finding that the application site "comes within the definition of ‘semi-natural area' as a matter of law" (para 41 of his judgment), does not distinguish sufficiently between the two stages of the exercise and gives the appearance of substituting the court for the local planning authority as the primary decision-maker on the question whether the proposed development falls within paragraph 1(a). It may be, as submitted by Mr Pereira, that that passage of the judgment is to be read as a finding that the only rational conclusion open to the council in applying the expression to the facts was that the application site was a semi-natural area. But if that is the right reading, the finding is, in my judgment, both surprising and clearly wrong.

37. Considerable caution is required when considering the meaning of "uncultivated land or semi-natural areas". One has to accept the inherent imprecision of the expression and avoid glosses or attempted re-definition in pursuit of a spurious precision. The Commission's guidance on the Directive and the guidance issued by Natural England in respect of the 2006 Regulations (paras 22-23 above) represent considered attempts by competent authorities at the EU and national level to explain the scope of the expression. I do not think it necessary or appropriate for the court to go further.

38. I need not give any detailed consideration to the term "uncultivated land", since nobody suggests that the application site in this case was "uncultivated land" and on no view could that term apply to this area of actively managed farmland. The debate focuses on the term "semi-natural areas".

39. The Commission's guidance states that an area can be "semi-natural" even where there has been some degree of human intervention which prevents it from being "natural". It refers to a number of relevant factors, including nature conservation value, landscape value and archaeological value, but states that "the main emphasis should be on identifying those areas which reflect natural conditions and which have some intrinsic nature conservation or other environmental value which would be lost by agricultural management proposals employed to permit intensification of agricultural practices". Natural England's guidance is in line with that of the Commission, but arguably more helpful, when it states that most semi-natural areas will qualify as uncultivated land but that some semi-natural areas may have been subject to low levels of cultivation, and it goes on to list the types of land considered to be semi-natural and to explain that such semi-natural areas are defined largely by the plants and wildlife they support. I do not think that the degree of human intervention is capable of providing in itself a clear-cut basis of distinction (cf. Mr Straker's submission that the expression "uncultivated land or semi-natural areas" conveys a single idea of land largely untouched by man). But there does seem to me to be a fundamental contrast between "semi-natural areas" and land that is subject already to intensive cultivation. Natural England's guidance expressly excludes all arable and horticultural land from the types of land considered to be semi-natural areas. In my view that is a proper reflection of the meaning of the term.

40. The deputy judge placed a lot of weight on environmental designations. They can be relevant, as the Commission's guidance shows, but in my view the deputy judge fell into error in the use he made of them in this case. The question for the council was whether the application site was a semi-natural area. The nature conservation areas referred to by the deputy judge (the SAC and the SSSI) are on adjacent land, not on the application site, and I do not see how they are capable on the facts of the case of affecting the question whether the application site is a semi-natural area. The same is true of the scheduled ancient monument, Goodrich Castle. The application site does come within the designated Wye Valley AONB, to which regard is rightly had as a relevant consideration but which is far from determinative. Landscape beauty can arise not just from the natural or semi-natural features of an area but also from the appearance of the cultivated land within that area, and the cultivated land does not become semi-natural just because it is included in a designated AONB. In my view the deputy judge attached undue weight to the landscape designation in this case.

41. In any event, as I have said, the first question is whether the council correctly understood the meaning of the expression "uncultivated land or semi-natural areas". I can see nothing to support the view that it misunderstood the expression or, therefore, that it fell into legal error at this stage of the analysis. The deputy judge considered that the council erred in its screening opinion by relying only on the fact that the land was already cultivated, thereby failing to appreciate that land which has been the subject of cultivation can still be semi-natural. That strikes me as an unfairly narrow reading of the reasons given in the screening opinion. As I read the screening opinion (see para 7 above), the point being made, albeit in a compressed way, is that the extent of existing cultivation (with a mixture of arable and turf production) is such that the land does not come within the description "uncultivated land or semi-natural areas" in paragraph 1(a) of Schedule 2. That reveals no legal error concerning the meaning of the expression.

42. The next question is whether, in applying the expression to the facts, the council reached a rational conclusion. I have no doubt that the answer to that question is "yes". I see no difficulty whatsoever in the view that the application site, consisting as it did of actively managed farmland already in use for the production of soft fruit, arable crops and turf in rotation, was neither uncultivated land nor a semi-natural area. Even if I had some doubt on the point, which I do not, I would hesitate to brand as irrational, on the basis of a paper exercise, a view reached on an issue of this kind by council officials familiar with the site and the surrounding area.

43. In my judgment, therefore, the deputy judge was wrong to conclude that the council made an error of law in deciding that the development did not fall within Schedule 2 to the 1999 Regulations. The council's decision was lawful and there is no basis for the court to interfere with it.

44. Although a further question, as to whether the proposed development was for "intensive agricultural use" of the land, was raised in evidence and submissions, my conclusion on the primary issue means that that question does not fall for consideration.

Whether the reasons were adequate

45. I can deal with the Association's reasons challenge relatively briefly. The nature of the duty to give reasons in relation to a negative screening opinion has been explained by the European Court of Justice in Case C-75/08, R (Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 2, which post-dated the screening opinion in this case:

"56. It does not follow, however, from Directive 85/337, or from the case-law of the court ..., that a determination not to subject a project to an EIA must, itself, contain the reasons for which the competent authority determined that an assessment was unnecessary.

57. It is apparent, however, that third parties, as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary.

58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority's screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.

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

60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made."

46. In the light of that judgment, the Association accepts that reasons need not be given in the screening opinion itself. It submits, however, that where, as here, reasons are given in the screening opinion, their adequacy falls to be considered by the same criteria as if they were obligatory (see R v Criminal Injuries Compensation Board, ex p. Moore [1999] 2 All ER 90, 95), and that the standard of reasons must be such as to enable an interested party to know whether the decision has been made in accordance with the law and to assess the merits of the claim with full knowledge of the relevant facts (see Mellor, paras 57-59). That standard, it is said, was not met by the reasons given in the council's screening opinion in this case. A particular point made by Mr Pereira in his oral submissions was that there was a failure to set out the range of considerations taken into account by the council in reaching its conclusion.

47. In my judgment, the reasons given in the screening opinion were adequate, though they could usefully have been fuller. I have already said (para 41 above) that the point being made in the opinion, as I read it, is that the extent of existing cultivation is such that the land does not come within the description "uncultivated land or semi-natural areas" in paragraph 1(a) of Schedule 2. That was sufficient to enable the Association to reach an informed decision whether to challenge the opinion for legal error. There was nothing else that the Association needed in order to raise the issues that have been canvassed in these proceedings before the deputy judge and this court. It was not incumbent on the council to set out all the considerations it had taken into account, such as the effect of the AONB. It set out the essence of its reasoning and that was enough.

Conclusion

48. Accordingly, I would allow the council's appeal and set aside the deputy judge's order. 
Lady Justice Smith :

49. I agree.
Lord Justice Rix :

50. I also agree.