Alternative sites: environmental assessments

Gathercole v Suffolk CC [2020] EWCA Civ 1179 – https://www.bailii.org/ew/cases/EWCA/Civ/2020/1179.html

“6.1 The Law: Assessment of Alternatives

    1. Article 5(3)(d) of the EIA Directive sets out the requirement to include in environmental information supplied regarding a project “an outline of the main alternatives studied by the developer and are the main reasons for his choice, taking into account the environmental effects”. This obligation was introduced into domestic law by The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations”). Although those have subsequently been superseded, it was the 2011 Regulations that applied in this case. The following definitions in those Regulations are relevant:

 

“‘Environmental information’ means the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;
“‘Environmental statement’ means a statement –
(a) that includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development… but
(b) that includes at least the information referred to in Part 2 of Schedule 4″

 

    1. Paragraph 4 of Part 2 of Schedule 4 to the EIA regulations contains an obligation in the same terms as Article 5(3)(d).

 

    1. Article 5(3)(d) was the subject of the CJEU decision in C-461/17 Holohan v AN Bord Pleanala [2019] PTSR 1054. That was a case in which the developer’s plan to build a road across a flood plain was the subject of a planning inquiry, at the end of which the inspector sought greater information on a variety of matters, including alternative proposals. Despite the developer’s failure to provide that information, the planning authority granted consent for the scheme anyway.

 

    1. Although one of the questions that the CJEU was originally asked was whether an environmental impact assessment was required to contain sufficient information as to the environmental impact “of each alternative”, the CJEU redrew the question at [60]. They went on:

 

“66. Further, since, according to Article 5(3)(d) of the EIA Directive, only an outline of those alternatives must be supplied, it must be held that that provision does not require the main alternatives studied to be subject to an impact assessment equivalent to that of the approved project. That said, that provision requires the developer to indicate the reasons for his choice, taking into account at least the environmental effects. One of the aims of imposing on the developer the obligation to outline the main alternatives is that reasons for his choice should be stated.
67. That obligation on the developer ensures that, thereafter, the competent authority is able to carry out a comprehensive environmental impact assessment that catalogues, describes and assesses, in an appropriate manner, the effects of the approved project on the environment, in accordance with Article 3 of the EIA Directive.
68. Last, it must be observed that the outline referred to in that provision must be supplied with respect to all the main alternatives that were studied by the developer, whether those were initially envisaged by him or by the competent authority or whether they were recommended by some stakeholders.
69. In the light of the foregoing, the answer to the fifth, sixth and seventh questions is that Article 5(3)(d) of the EIA Directive must be interpreted as meaning that the developer must supply information in relation to the environmental impact of both the chosen option and of all the main alternatives studied by the developer, together with the reasons for his choice, taking into account at least the environmental effects, even if such an alternative was rejected at an early stage.”
    1. The conclusion at [66], that the assessment of the main alternatives is not required to be the equivalent of the assessment of the approved project, is consistent with UK domestic authority: see for example R v SSE Transport and Regions [2001] Env LR 12 and Sharp v Chelmsford City Council [2013] EWHC 4180 (Admin). In the latter case, Ouseley J said that there was no requirement “to carry out a mini, let alone near full, environmental assessment of alternatives”

 

    1. Mr Streeten formulated what he said was the principle to be derived from Holohan at paragraph 31 of his skeleton, as follows:

 

“Article 5(3)(d) requires a developer to provide in the ES sufficient information to enable a comparative assessment of the relative environmental effects of the proposed development and each of the main alternatives studied”.

He accepted that Holohan did not express it in that way, and he agreed that he was unable to rely on any other authority in support of it.

    1. In my view, his formulation amounts to an unacceptable and significant gloss on what the CJEU said in Holohan, and comes far too close to requiring a detailed environmental assessment of each main alternative, which is emphatically not the law. Such a requirement would lead to major additional expense, and endless disputes between developer and objector about what is or is not a ‘main’ alternative. If, for example, alternative X would cost four times as much to develop as the proposed site, and there is also what the planning officer considers to be a sound environmental reason for the rejection of alternative X, capable of being stated in one line, then the authority is entitled to discount alternative X on that basis. Anything else would lead to a natural tendency on the part of developers to address as few alternative sites as possible in the ES – because of the cost and trouble of so doing – which would be the opposite of what the Directive was designed to achieve.

 

6.2 The Law: The Test For Judicial Review In These Circumstances

    1. What is the correct legal test which the court should apply as an application for judicial review when assessing compliance with the EIA Regulations? The starting point is the decision of Sullivan J (as he then was) in R (on the application of Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin)[2004] ENVLR 29 at paragraph 41. In dealing with the legal inadequacy of an ES for the purposes of an EIA for a development project under the EIA Directive and Regulations, he said:

 

“41. Ground 1 in these proceedings is an example of the unduly legalistic approach to the requirements of Sch.4 to the Regulations that has been adopted on behalf of claimants in a number of applications for judicial review seeking to prevent the implementation of development proposals. The Regulations should be interpreted as a whole and in a common-sense way. The requirement that ”an EIA application” (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R. v North Yorkshire CC Ex p. Brown [2000] 1 AC 397, at p.404, the purpose is ”to ensure that planning decisions which may affect the environment are made on the basis of full information”. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the ”full information” about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ”environmental information” provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between.”
    1. In R (on the application of Spurrier v Secretary of State for Transport and others [2019] EWHC 1070 (Admin) (“the Heathrow case”), the Divisional Court considered and affirmed the approach in Blewett, noting:

 

“419. We turn to the EIA authorities. In Blewett, the complaint was that the environmental statement for a proposed extension to a landfill site contained no assessment of the effect of the scheme on groundwater protection. Instead, the minerals planning authority decided that that matter could be left to be assessed following the grant of planning permission, by assuming that complex mitigation measures would be successful. Sullivan J held that the starting point was that it was for the local planning authority to decide whether the information supplied by the applicant was sufficient to meet the definition of an environmental statement in the EIA Regulations, subject to review on normal Wednesbury principles (see [32]-[33]). Information capable of meeting the requirements in schedule 4 to the EIA Regulations should be provided (see [34]), but a failure to describe a likely significant effect on the environment does not result in the document submitted failing to qualify as an environmental statement or in the local planning authority lacking jurisdiction to determine the planning application. Instead, deficiencies in the environmental information provided may lead to the authority deciding to refuse permission, in the exercise of its judgment (see [40]). Thus, the statement in [41], that the deficiencies must be such that the document could not reasonably be described as an environmental statement in accordance with the EIA Regulations, was in line with the judge’s earlier observations in [32]-[33]. It simply identified conventional Wednesbury grounds as the basis upon which the court may intervene.
420. In Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) at [73], Beatson J referred to a number of authorities which had taken the same approach in EIA cases to judicial review of the adequacy of environmental statements or the environmental information available: R v Rochdale MBC ex parte Milne [2000] EWHC 650 (Admin)[2001] Env LR 22 at [106], R (Bedford and Clare) v Islington London Borough Council [2002] EWHC 2044 (Admin); [2003] Env LR 22 at [199] and [203], and Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321[2012] Env LR 22 at [39]. In Bedford and Clare, Ouseley J held that the environmental statement for the development of a new stadium for Arsenal was not legally inadequate because it had failed to assess transportation impacts using the local authority’s preferred modal split, the loss of an existing waste handling capacity to make way for the development, noise effects at night and on bank holidays, contaminated land issues, and the effects of dust during construction. He considered that the significance or otherwise of those matters had been a matter for the local authority to determine. The claimant’s criticisms did not show that topics such as modal split or noise effects had not been assessed at all. Instead, they related to the level of detail into which the assessment had gone and hence its quality. That was pre-eminently a matter of planning judgment for the decision-maker and not the court.”
    1. When the Heathrow case went to appeal, ([2020] EWCA Civ 214), this court agreed with that approach. They also agreed with [434] of the Divisional Court decision, to the effect that “decisions on the inclusion or non-inclusion in the Environmental Report of information on a particular subject, or the nature or level of detail of that information, or the nature of extent of the analysis carried out, are matters of judgment for the plan-making authority.” This court also referred to Ashdown Forest Economic Development LLP v Weald and District Council [2015] EWCA Civ 684[2016] ENV LR 2 where Richards LJ said that “the identification of reasonable alternatives… is a matter of evaluative assessment for the local planning authority, subject to review by the court on normal public law principles, including [‘Wednesbury’] unreasonableness”. This court concluded at [136] of its judgment in the Heathrow case:

 

“136. The answer, we think, must be apt to the provisions themselves. The court’s role in ensuring that an authority – here the Secretary of State – has complied with the requirements of article 5 and Annex I when preparing an environmental report, must reflect the breadth of the discretion given to it to decide what information “may reasonably be required” when taking into account the considerations referred to – first, “current knowledge and methods of assessment”; second, “the contents and level of detail in the plan or programme”; third, “its stage in the decision-making process”; and fourth “the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment”. These requirements leave the authority with a wide range of autonomous judgment on the adequacy of the information provided. It is not for the court to fix this range of judgment more tightly than is necessary. The authority must be free to form a reasonable view of its own on the nature and amount of information required, with the specified considerations in mind. This, in our view, indicates a conventional “Wednesbury” standard of review – as adopted, for example, in Blewett. A standard more intense than that would risk the court being invited, in effect, to substitute its own view on the nature and amount of information included in environmental reports for that of the decision-maker itself. This would exceed the proper remit of the court.”

6.3 The Wednesbury Challenge To The ES

    1. The complaint is that the ES did not assess the environmental effects of the alternative sites properly, or in some cases at all, so that the decision to grant planning permission in reliance upon it was irrational. This alleged deficiency was never raised in any of the discussions or representations made up to the taking of the decision. Indeed it was not raised prior to these judicial review proceedings. Mr Streeten’s only answer to that was to say that Holohan changed the law, so the argument only became viable following the decision in that case.

 

    1. I do not accept that, because I do not accept that Holohan changed the law in any material respect. I consider that the absence of any contemporaneous complaint about the adequacy of the ES in relation to the alternative sites is an indication of the unrealistic and unpersuasive nature of this challenge. In my view, on the application of ordinary public law principles, as set out in Blewett, the judge was right to conclude that this ground of challenge was unsustainable.

 

    1. Dealing first with Sites 2, 3 and 6, they were plainly considered in the ES (and then the officer’s report) by reference to the environmental impact of any development: see paragraph 10 above. Site 2 was currently woodland and the ES (and the officer’s report) expressly referred to the ecological and visual impact of cutting down trees, some of which were subject to TPOs. It was expressly said that Site 2 was a wildlife corridor. Site 3, the site that the appellant favours, was noted as having constrained access. Potential access roads would have to come through residential estates and there was the potential for highway congestion. Those were all environmental negatives. More significantly still, the ES and the officer’s report expressly noted that the noise levels for Site 3 would be similar to the existing school and therefore in excess of the noise levels at the proposed site. And Site 6 was discounted in the ES and the officer’s report because it was detached from the Lakenheath settlement so that there was the potential of highway issues. Again more significantly it was at the end of the runway and directly beneath the take-off path so the short term noise was “likely to be very high”.

 

    1. Since it cannot be said that the environmental impact of development at these three alternative sites was ignored in the ES and the officer’s report, the only remaining complaint must be that the information in respect of these sites was insufficiently detailed. In my judgement that submission is unsustainable. The law makes plain that the environmental assessment for potential sites is not intended to be detailed. Moreover, the question of sufficiency of information was, as per Blewett and Ashdown Forest, classically a matter for the decision-maker. It was a planning judgment, and not a matter for the court on judicial review.

 

    1. As to Sites 1,4 and 5, the appellant argued that these were not the subject of any environmental assessment at all. I disagree as a matter of fact. Sites 1 and 4 were discounted on the basis that they were too isolated. It is trite that, in planning terms, if a site is isolated, it means that it is more difficult to access and is more likely to require greater vehicular travel to and from the site itself. That is an environmental issue. Site 5 was discounted on the basis that its southerly location in the village was not ideal when considered against the planned growth of the village. In other words, it was not near the proposed new developments, so there would be longer journeys to Site 5 if that was where the school was located. Again that is an environmental consideration.

 

    1. On analysis, the appellant’s real criticism in respect of Sites 1,4 and 5, must be that the information provided in relation to these three sites was not extensive enough. Again, I reject that criticism because the sufficiency of information in relation to alternative sites was a matter of judgment for the planning committee.

 

    1. Finally, I should say that I was not persuaded by Mr Streeten’s argument that, because the definition of an ES in the EIA Regulations (paragraph 46 above) states that an ES must include “at least” the information in Part 2 of Schedule 4, this somehow elevated the importance of the “outline of the main alternatives” and made a breach of the EIA Regulations in this case easier to establish. In my view, the definition is simply concerned to show the minimum information to be included within an ES. That does not affect what might be called the Blewett approach, which I have set out above.

 

    1. Accordingly, there is no basis for a Wednesbury challenge in relation to the ES in this case. Not only were these alternatives well known to all the proposed objectors, and not only were their pros and cons the subject of detailed debate, but environmental assessments of one sort or another were provided in relation to each alternative site. True it is that those were brief, both in the ES and in the officer’s report, but the brevity or otherwise of the assessment must ultimately be a matter for the decision-maker. It cannot be said that the decision to choose the proposed site instead of any of these other alternatives was irrational. The judicial review challenge therefore fails on that ground alone.

 

  1. For completeness I should add that the judge’s approach to this issue at [71], which I have set out at paragraph 19 above, was not supported by Mr Ground QC. It seems to me that, in that paragraph, the judge conflated the allegation of breach of the EIA Regulations with the separate issue of whether, if there was a breach, it would have made any difference to the outcome. It is important that these two questions are dealt with separately. For the reasons which I have given, I would reject the allegation of breach. Although that makes it strictly unnecessary to consider the separate issue of causation, for completeness, I go on to consider briefly whether, if the alleged breach had been established, it would have made any difference.”

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