Neutral Citation Number: [2013] EWHC 4269 (Admin)
CO/10709/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Thursday, 12 December 2013
B e f o r e:
LORD JUSTICE MOSES
Between:
THE QUEEN ON THE APPLICATION OF OLDFIELD
Appellant
v
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Respondent
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Mr P Stookes (instructed by Richard Buxton Solictors) appeared on behalf of the Claimant
Mr R Turney (instructed by Treasury Solicitors and Osborne Clarke) appeared on behalf of
the Respondent and Metropolitan Property Realizations Limited (Interested Party)
JUDGMENT
(Approved)
Crown copyright©
SMITH BERNAL WORDWAVE
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1.
LORD JUSTICE MOSES: Close by Margate sea front there are two sites of prime
importance to Margate's regeneration. The first is Arlington House and Arlington
Square, 1.8 hectares, where the 19 storey tower block is prominent. This affords a
gateway to the town. Next to it is the Dreamland Environment Amusement Park with
Grade II and Grade II* listed buildings. The adjacent beach is within a Ramsar site [a
wetland of international importance], a Special Protection Area, a Special Area of
Conservation and a Site of Special Scientific Interest, in the main due to its importance
as a habitat for wintering and breeding birds.
2.
On 6 August 2012 the Secretary of State confirmed the Council's Compulsory Purchase
Order to secure the preservation and regeneration of Dreamland. Following an appeal
and a planning inquiry in relation to a proposed development at Arlington House and
Square between 6 and 9 November 2012, the Secretary of State recovered the appeal
and on 13 June 2013 granted planning permission to the second interested party, that is
Metropolitan Property Realizations Limited, for redevelopment of that site.
3.
The proposed development at Arlington House and Square meets the criteria for
Schedule 2 development within the meaning of the Town and Country Planning
(Environmental Impact Assessment Regulations 2011), but no Environmental Impact
Assessment has been undertaken following the Secretary of State's decision on 18 July
2012, that the development was not an EIA development because the proposal would
not be likely to have significant effects on the environment having regard to the
characteristics of the development as identified in Schedule 3 of the Regulations.
4.
The Appellant [it is either the Appellant or the Claimant but I will call her the
Appellant] challenges that decision by way of Judicial Review and at the same time
appeals against the Secretary of State's grant of planning permission pursuant to s.288
TCPA 1990 on the grounds of the failure to undertake an EIA prior to the grant of
planning permission.
5.
The essential basis of the challenge and the appeal is that the Secretary of State failed to
consider the cumulative effects of the development when assessed with the effects of
the development of Dreamland. The effects of both should have been considered but
they were not. Moreover, had those effects been considered cumulatively, the
Secretary of State was bound to regard the development at Arlington Square as an
Environmental Impact Assessment development and bound to have conducted such an
assessment before consenting to planning permission.
6.
The Appellant is a local resident and runs a 5* gold graded bed and breakfast
establishment. She is Chair of the Margate Conservation Area Advisory Group,
Margate Independent Traders was a Rule(6)6 Party at the Public Inquiry where she
represented the Friends of Arlington Margate (FOAM) and was herself represented by
counsel.
Environment impact assessment
7.
Although the EIA Regulations 1999 were in force at the time of the planning
application, all parties seemed content that the Court should be governed by the 2011
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Regulations designed to implement the directive 85/337/EC as amended, now
consolidated by 2011/92/EU. Environment Impact Assessment development is defined
by Regulation 2. Where development falls within that definition, neither the Secretary
of State nor an inspector may grant planning permission unless they have first taken
into consideration the environmental information defined in Regulation 2, that is:
"'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 a
development;
'environmental statement' means a statement (a) that includes such the information related to in Part 1 of
Schedule 4 as is reasonably required to assess the
environmental effects of a development and which the
applicant can, having regard in particular to current
knowledge and methods of assessment, reasonably be
required to compile."
8.
Schedule 4, Part 1 identifies the information required which includes, to give a flavour
of it:
"(a) a description of the physical
characteristics of the whole
development and the land-use
requirements during the construction
and operational phases."
9.
And under paragraph 4:
"A description of the likely significant effects of the development on
the environment, which should cover the direct effects and any
indirect, secondary, cumulative, short, medium and long-term,
permanent and temporary, positive and negative effects of the
development resulting from (a) the existence of the development."
10.
This appeal and Judicial Review is primarily concerned with the process by which the
Secretary of State determined that the Arlington development was not an EIA
development. By Regulation 4.3 of the Regulations:
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"A direction of the Secretary of State shall determine for the purpose
of these Regulations whether development is or is not EIA
development."
11.
The importance of such assessments and consideration of whether they are needed
should not be underestimated. The purpose of the Directive is to ensure that planning
decisions which may affect the environment are made on the basis of full information
and that that information should be obtained by means of the particular procedure
called an "Environmental Impact Assessment". The purpose is to ensure that the
environmental impact of the project is included in public debate. The public must be
given an opportunity to comment on those environmental issues exposed by
Environmental Impact Assessment. The environment statement is a single accessible
compilation of relevant environmental information crucial to the assessment of likely
significant effects [see Barclay v Secretary of State for the Environment [2001] 2 AC
603 at pages 613G-H and 617E-F].
12.
Consideration as to whether an EIA may be dispensed with must bear in mind the broad
scope and wide purpose of the Directive, the purpose of which an EIA is designed to
fulfil [see case C-142/07 Ecologistas en Accion v Ayuntamiento de Madrid [2008]
ECR I-06097 at paragraphs 28 and 33]. In particular, since protection of the
environment depends upon the precautionary principle and an assessment of risk, those
are vital considerations where a decision is made as to whether an EIA assessment is
necessary: Recital 2 of the 2011 Directive says:
"Pursuant to Article 191 of the Treaty on the Functioning of the
European Union, Union policy on the environment is based on the
precautionary principle and on the principles that preventive action
should be taken, that environmental damage should, as a priority, be
rectified at source and that the polluter should pay. Effects on the
environment should be taken into account at the earliest possible
stage in all the technical planning and decision-making processes."
13.
In R (Loader) v SSCLG [2012] EWCA Civ 869 [2013] Env LR 7, paragraph 43, Pill LJ
identified those features, saying in particular in 43:
"What emerges is that the test to be applied is: 'Is this project likely
to have significant effects on the environment?' . . . The decision
maker must have regard to the precautionary principle and to the
degree of uncertainty as to environmental impact, at the date of the
decision. Depending on the information available, the decision
maker may or may not be able to make a judgment as to the
likelihood of significant effects on the environment. There may be
cases where the uncertainties are such that a negative decision
cannot be taken. Subject to that, proposals for ameliorative or
remedial measures may be taken into account by the decision
maker."
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14.
Accordingly, it is necessary to consider whether there is any serious possibility of
significant effects on the environment [see R (Bateman) v South Cambridgeshire
District Council [2011] EWCA Civ 157 at paragraph 17]. The Court is concerned with
real risk and not with probabilities [see R(Morge) v Hampshire County Council [2010]
EWCA Civ 608 at paragraph 80].
15.
It is, however, important also to stress that whether a proposed development is likely to
have significant effects on the environment is itself a matter of planning judgment,
reviewable only on conventional Wednesbury grounds, for example that the
decision-maker has failed to take into account relevant considerations or has reached a
decision outwith the range of reasonable conclusion. In Jones v Mansfield [2004] Env
LR 21, both Dyson LJ and Carnwath LJ stressed the importance of the exercise of
planning judgments in considering whether environmental effects are likely to be
significant. Dyson LJ said at paragraph 38:
"Significance in this context is not a hard-edged concept: as I have
said, the assessment of what is significant involves the exercise of
judgment."
16.
Carnwath LJ said at paragraph 61:
" . . . the word 'significant' does not lay down a precise legal test. It
requires the exercise of judgment on technical or other planning
grounds and consistency in the exercise of that judgment in
different cases. That is a function for which the courts are
ill-equipped, but which is well-suited to the familiar role of
planning authorities under the guidance of the Secretary of State."
17.
At the outset it is necessary to recall that the question whether the proposed
development was likely to have significant effects on the environment has been
considered in the instant case on three occasions, leaving aside an earlier flawed
screening decision by the Planning Inspectorate on 12 January 2012. It is necessary to
place those three occasions in their proper chronological context. On 26 October 2011
the developer appealed the Council's failure to determine the application. On 12
January 2012, the Environmental Services Team on behalf of the Secretary of State
made a decision that no EIA was necessary in its screening direction. On 13 March
2012 the Secretary of State conceded that there were errors in the reasoning of that first
screening direction. On 18 July 2012 the Environmental Services Team made a further
negative EIA screening direction. On 3 August 2012 the Claimant challenged that
direction. On 16 August 2012 the Secretary of State confirmed a Compulsory Purchase
Order made by the Council to secure the preservation and regeneration of Dreamland,
next door to this development. On 8 October 2012 this Appellant issued proceedings.
On 6 to 9 November 2012 the Planning Inquiry in relation to the Arlington
development was held. On 12 November 2012 the Secretary of State recovered the
appeal for his own determination. There were then legal challenges to the Compulsory
Purchase Order, permission granted in relation to this Judicial Review and
consolidation of this Judicial Review and the appeal. On 13 June 2013 the Secretary of
State issued his decision letter.
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18.
In the first screening decision on 18 July 2012 the Inspectorate, on behalf of the
Secretary of State, concluded that the proposal would not be likely to have significant
effects on the environment by virtue of factors such as its nature, size or location. The
decision was accompanied by a standard form screening checklist which sets out the
judgments reached by the Secretary of State in summary form. It is important to
appreciate that there was before the Inspectorate at that stage not only the application
documents submitted by the developer, but the Appellant's own representations on that
application and relevant to her appeal which was postponed following her successful
challenge.
19.
Following the screening decision that there should not be an Environmental Impact
Assessment development, the Appellant again challenged the lawfulness of the
screening decision. Her pre-action protocol letter raised a number of points under the
heading "Failure to consider cumulative impacts". She referred to pollution and
discharges, vibration, noise and light pollution, the protected areas around the location,
the impact on visual amenity and the routes affected by the project and susceptible to
congestion. She also referred towards the end of that pre-action protocol to the future
land uses which could affect the project and in particular the Dreamland planning
briefs. She said:
"However, the Inspectorate (on behalf of the Secretary of State)
could not reasonably conclude with certainty that there would not
be significant effects on the environment given the information that
was available."
20.
The application for Judicial Review had not been heard, as the chronology reveals, by
the time of the Inquiry. The Inquiry of 6 to 9 November 2012 before the Inspector, as
he recorded in his report to the Secretary of State dated 21 December 2012, included a
summary of all the matters relevant to cumulative effect set out in the pre-application
protocol letter of the Appellant dated 3 August 2012. The Inspector added:
"An opportunity to present evidence on all these matters was
available at the Inquiry and I have had full regard to them."
21.
Thus every argument now advanced as to the unlawfulness of the Secretary of State's
decision not to regard the development as an Environmental Impact Assessment
development was presented to the Inspector with relevant evidence. He considered the
very point as to whether this was Environmental Impact development and concluded
that it was not [see paragraphs 298 to 300 of the report]. The Secretary of State
endorsed that decision in a decision granting planning permission on 13 June 2013.
22.
I stress this course of events because the decisions of the Inspectorate and of the
Secretary of State and the Inspector must both be placed in the context of the full
arguments and evidence advanced on behalf of the Appellant as to why an Environment
Impact Assessment was necessary. The conclusions in response must be understood in
the light of those representations. Where they are attacked as being short or summary,
it must be appreciated that they are in response to full arguments advanced as to the
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environmental impact and evidence. It is difficult to believe that those arguments, so
fully and repeatedly expressed, can have been forgotten or ignored.
23.
The first ground of challenge was that the project had been unlawfully split, a reference
to what was called "salami slicing". This expression stemmed from, amongst other
things, EC guidance "Interpretations of definitions of certain project categories" [2008]
page 8, describing project splitting and explaining that it was unlawful:
"Exclusion of salami-slicing (project splitting)
ECG case-law has addressed the issue of 'salami slicing' ie the
practice of splitting projects into sub-projects so that each of these
fall below screening thresholds or criteria and therefore avoid the
obligation to undergo an EIA."
24.
As both the Secretary of State and the developer point out, this is a ground of challenge
which had been confused by the Appellant with the second ground, a failure to consider
the cumulative effect of the Dreamland and Arlington projects. The two grounds are
not the same. The first ground appears to be a complaint that aspects of the Arlington
project have been hived or split off so as to reduce the environmental impact which the
project, if viewed properly as a whole, might have. The Dreamland project was not
unlawfully split off, it was never part of the Arlington development at all. The
Arlington project is correctly identified by the Appellant as:
"(1) The development of a superstore with
associated parking and services, a new access road and [a
combined heat and power
. . .
plant]; the
refurbishment Arlington House, including repair and
staining of concrete cladding, new windows, new
entrance; the development of D1/A1-A5 units on All
Saints Avenue; outline permission for a 60-bed hotel
with 21 parking spaces with servicing; . . . .
(2) The demolition of the Arlington Square
retail shopping, the demolition of a 2 storey car park (of
around 1 ha), changes to the use of surrounding
highway with increased numbers of vehicles on the
highway . . . the development of necessary sewerage
infrastructure to service the development including the
development of one or more pumping stations . . . the
construction and use of a 60-bed hotel with car
parking, public realm works beyond the Arlington
Square boundary, and highway improvement works,
the loss of about 500 car parking spaces for leisure
and tourist use."
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25.
In particular, the allegations that the demolition of the car parking area of around one
hectare that had been available, as the Appellant describes, for many years was not
ignored at the time of the screening decision. The documents make it clear that the
Arlington site car park would be redeveloped. It is untenable to suggest that this was
missed.
26.
Secondly, the loss of the 500 car and coach parking spaces for tourism was considered
and referred to in box 18 of the checklist. There is no basis for saying that they were
ignored, misunderstood or hived off.
27.
Thirdly, one of the issues which has caused considerable concern to the Appellant and
many others is the issue of foul drainage. In relation to the allegation of salami slicing,
it was alleged that there was a need to develop a sewerage infrastructure system to
enable the foul sewage to enter the public draining system and there was evidence
given at the Inquiry of times when local sewerage systems had failed.
28.
But, again, it is not possible to say that this was an issue that was hived off; it was dealt
with. Foul drainage was covered by an exchange of correspondence with Southern
Water and Southern Water was content with the strategy proposed. There were no
details but details had to be approved under a specific condition, condition number 13,
when permission was granted:
"No development apart from demolition shall take place until details
of the means of foul and surface water disposal, including details of
the implementation, management and maintenance when proposed
sustainable urban drainage systems have been submitted to and
agreed in writing by the local planning authority. The development
shall be carried out in accordance with such details as are agreed
and thereafter maintained."
29.
The fourth matter it was contended had been hived off was the application for outline
permission in relation to the 60-bed four-floor hotel facing the sea front. It was said
that there had been no adequate assessment of its use, landscape, visual impact or
lighting. But, again, it is clear that the hotel was recorded as part of the development
and it is referred to specifically in the checklist; for example at box 25. The points
were made at the Inquiry by the Appellant and were before the Inspector when he
considered the Inquiry and made his report. There is therefore no basis whatever to
suggest that the Arlington project was not properly looked at as a whole for the purpose
of considering its environmental impact and the likely significant effects of the
environmental impact. All that fell within the scope of the development, was properly
considered, no aspect was improperly sliced off.
30.
It was ground 2 which was the main focus of the submissions before the Court, made so
beguilingly by Mr Dove QC. He contended that the Secretary of State and the
Inspector ought to have considered the environmental impact of the development of
Dreamland in conjunction with the likely effects of the Arlington project. The
Inspector had failed to do so, considering only the likely effects of the Arlington
project. The Appellant submitted that the Arlington and Dreamland developments were
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linked and that it was their combined effect which the Inspector and the Secretary of
State ought to have but had failed to consider.
31.
The starting point is the requirement under Schedule 3, paragraph 1 of the Regulations,
to have regard to what is described as "(b) the cumulation with other development".
The jurisprudence on the need to consider the cumulation of effects stems from disputes
as to the nature of the project, the environmental effects of which need to be considered
under either the Directive or the Regulations and whether the objective of the
legislation has been circumvented by unwarranted splitting. For example, in Abraham
and others v Région Wallone and others C-2/07 [2008] ECR I-0000, modification of an
infrastructure by an air freight company at an airport had to be considered as a
modification of the airport as a whole. The Court said:
"27 . . . the national court should be reminded that the objective of
the legislation cannot be circumvented by the splitting of projects
and that failure to take account of their cumulative effect must not
mean in practice that they all escape the obligation to carry out an
assessment when, taken together, they are likely to have significant
effects on the environment within the meaning of Article 2(1) of
Directive
85/337." [See also paragraph 32].
32.
Based on that decision Collins J in R(Baker) v Bath and North East Somerset District
Council reached a similar conclusion in relation to the proposal to deal with green
waste by dumping it in a site in respect of which permission had already been given
some two kilometres away. The modification had to be considered in the light of the
significant effects of the site as a whole [see paragraph 44 and 45].
33.
In such cases, it was obvious that the modifications were an integral part of the whole
site and the effects of the whole site had to be considered. The more difficult question
is whether two separate projects are linked to the extent that having regard to the width
and purpose of the Directive, their combined environmental effects should be
considered as a whole. Light is cast on resolution of that question by the Court of
Appeal in Brown v Carlisle City Council [2010] EWCA Civ 523 [2011] Env LR 5.
Development at Carlisle airport had been scaled down to a proposed freight distribution
centre. The environmental effects of that proposed freight distribution centre had been
considered alone without consideration of development which was the subject of a
Section 106 agreement regarding runway improvements and a terminal building. Only
the project viewed as a whole fulfilled the relevant development plan whereas, in
contrast, consideration of environmental effects had been restricted merely to the
freight centre. That failure rendered the subsequent grant of planning permission
unlawful. The failure to consider the airport works as a whole vitiated the consent. At
paragraph 21 Sullivan LJ said:
"No authority was cited for the proposition that the connection
between two developments must be an operational or functional one
for the environmental effects of one of the developments to be part
of the cumulative effects of the other. The answer to the question what are the cumulative effects of a particular . . . development -
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will be a question of fact in each case. There may be a cumulative
effect notwithstanding the absence of a functional link."
34.
He concluded that there was plainly a cumulative effect even though, let it be noted, the
information in relation to the effects of the airport was inchoate [see paragraph 28].
35.
In the instant case there was plainly a link between the projects since both were
designed to contribute and together would contribute to the regeneration of Margate. In
the Dreamland Planning Brief of 2008 it was said:
"The Master Plan considered that to come up with proposals that
create a high quality environment, the future of the Dreamland and
Arlington sites should be considered together as neither site
considered in isolation was capable of delivering the desired
transformation and quality."
36.
In the Arlington Planning Brief it was stated:
"Thanet District Council's Corporate Plan 2007-11 includes within
Theme 1 (economy) the need for the Council to work with the
owners of Arlington and Dreamland to agree plans for the
regeneration of the two sites. This brief assists that process,
focusing on the Arlington site. It should be read in cognisance of a
Planning Brief for the Dreamland site approved by Council in
February 2008."
37.
The Arlington Planning Brief continued by reminding the reader that the brief should
be read in conjunction with the Dreamland brief [see page 14] and under
"Comprehensive Development" under "Regeneration Rationale" it was said that:
"The development of the site in conjunction with Dreamland would
enable a comprehensive and much better connected development of
the sea front, meeting regeneration objectives."
38.
Under the heading "Comprehensive Development" it was said:
"It is considered that the Arlington site is strongly related to the
Dreamland site and there is a strong preferences for a scheme that
demonstrates how a total development of both sites can be
achieved, although it is acknowledged it may not be possible to
bring forward these sites together. If separate schemes come
forward for individual sites they must demonstrate that they have
respected the development potential of adjacent sites and
considered the cumulative impact of development. They should
also illustrate how the development of any one site in isolation can
form part of a future comprehensive integrated enhancement of the
sea front environs and improve the Arlington site's present poor
relationship with surrounding development."
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39.
In addition, the then owners of Dreamland requested omission of any reference to the
Dreamland brief in the Arlington planning application. This led to some modification
but not to omission. The developer of Arlington in its application stated:
"References to the Dreamland brief are retained but modified to
relate more to the proximity of the site and potential for
complementary development."
40.
It seems to me plain that in the light of the close relationship between the two projects
the environmental effect of the Arlington project did have to be considered
cumulatively with the proposed development of Dreamland alongside.
The
development of Dreamland could not be ignored or put to one side when considering
the environmental effects of Arlington and their significance in order to fulfil the
requirements of Schedule 3(1) and (4) of the Regulations.
41.
But were they put to one side? Is the Appellant correct when she contends that the
Dreamland development was not taken into account? It is difficult to believe that it was
not taken into account in the light of the Appellant's letter dated 27 February 2012
which successfully challenged the original screening decision and alleged that the
Inspectorate had unlawfully failed to consider the cumulation of impacts within the
wider regeneration proposal and, in particular, the ongoing Inquiry into the compulsory
purchase of the Dreamland site. The Inspectorate's screening decision, as I have said,
must be considered in the light of representations that had already been made on behalf
of the Appellant as to what is described as a "cumulation" of impacts.
42.
In the screening decision of 18 July 2012, it is demonstrated that the Dreamland project
was considered. At box 11 there is reference specifically to the likely effects having
regard to the location to the west of the Dreamland site and references to the graded
buildings on that site. A conclusion is reached that there would be no significant
effects on the setting of the Dreamland site in the context of existing land uses and the
"surrounding urban development".
43.
At box 26 and 27 there are again specific references to the Dreamland site and the
Dreamland Planning Brief with an acceptance that environmental effects are likely. At
that stage it was believed that there would be an access road linking into the Dreamland
site, although that is not now going to be pursued. The conclusion was reached:
"No significant cumulative effects are likely given the type and scale
of the proposed development."
44.
It is not possible, in my view, to suggest that the Dreamland project or its effects were
ignored at that stage. After all, as I have sought to emphasise, the screening decision,
when it was reconsidered by the Inspector in November of 2012, followed the
Appellant's pre-action letter of 3 August 2012 which made specific reference to the
matters on which the Appellant now relies and I have already sought to summarise
those matters in this judgment.
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45.
Furthermore, it must be recalled that by the time of the Inquiry, the Inquiry into the
Compulsory Purchase Order had been concluded on 16 August. This referred to the
existing buildings on the Dreamland site and in particular that there were permitted
development rights under the Town and Country Planning General Permitted
Development Order 1995/418, Schedule 2.
46.
But, as was accepted, in the event of an Environmental Impact Assessment the matter
would require consent, despite the General Permitted Development Order. The
Dreamland Planning Brief made it clear that an Environmental Impact Assessment in
relation to that development was expected [see page 19 under the heading "Planning
application"]:
"It is considered that a planning application will almost certainly
need to be supported by an Environmental Impact Assessment as it
comprises an urban development project exceeding 1 hectare in
area . . . "
Then it sets out the different elements that that will require.
47.
At the Inquiry, as I have said, the Appellant had a full opportunity to deploy every
argument and give evidence in relation to the cumulative effects to make good her
argument that an assessment was required. I have already referred to paragraph 6 of the
Inspector's report but I should add that there were discussions as to the growth in traffic
[see, for example, paragraph 40 in relation to the consequences of the success of the
Turner Contemporary Gallery, paragraph 74 under the heading "Likely significant
environmental effects", which considered the traffic congestion in the context of
proposed Public Role works and paragraph 263, which contained the report that the
Highway Authority did not object to the proposals and the transport assessment, which,
it was noted, took into account the effects of the whole of the Arlington scheme but
continued:
"Its conclusions did not take into account the traffic effects of the
potential redevelopment of the Dreamland site, although a
sensitivity test involving 200 buildings on the green land site using
the access road extended into the Dreamland site requested by the
Highway Authority was incorporated into the modelling."]
48.
Now that the access road is not proposed, that may prove to be irrelevant but the fact
that the matter was considered at the time shows, as it seems to me, beyond question
that the development at Dreamland was taken into account.
49.
That conclusion in relation to traffic is of some significance in this appeal and Judicial
Review because it shows that whilst it was taken into account, the conclusion was there
was no combined effect of the two projects; rather, the effect on traffic in the area
would be the consequence of Dreamland development and not of a combination of
Arlington and Dreamland.
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50.
Similarly, as I have already discussed, there was consideration of sewage discharge and
ample evidence of complaint and concern by those who lived in the area leading, no
doubt, to Condition 13 being imposed.
51.
There was also consideration of noise, including a discussion of the noise-generating
implications of the possible future development of the Dreamland site when the
Appellant's acoustics consultant was giving his evidence and presenting his report [see
paragraphs 276-282 of the Inspector's report].
52.
It seems to me in the light of the specific references, including the references at
paragraph 6 to the Appellant's argument, impossible to say that the Inspector failed
when considering the screening direction to take into account the Dreamland project.
On the contrary, it was taken into account but when considered cumulatively with
Arlington, it did not lead to the view that significant environmental effects were likely.
This is what the Inspector reported:
"298. Whilst hearing the evidence I have had regard to whether the
proposals represent development requiring EIA."
53.
He records their size and that they lie near a sensitive area. He continues, 299:
"I have considered the criteria set out in Schedule 3 of the EIA
Regulations for screening Schedule 2 development in the context of
the evidence presented at the Inquiry, including that concerning the
matters to which Louise Oldfield [this appellant] drew attention (6).
The development is located on a previously developed site in a
built-up area of Margate and comprises a similar type of residential
and commercial development to that which already exists on the
site, with the addition of a hotel and with some increase in scale and
intensity of use. The evidence suggests that it would not harm the
sensitive area nearby.
300. There would be temporary impacts during demolition and
construction and permanent impacts during operation which would
be mitigated through conditions attached to a grant of planning
permission and s106 obligations. In my view, the residual impacts
are unlikely to have significant effects on the environment and
therefore EIA is not required. I agree with the screening direction
made in July 2012."
The Secretary of State came to a similar conclusion.
54.
I should here bear in mind a proposition that seemed from time to time to underlie the
submissions made on behalf of the Appellant. The submission appeared to be that if
the Dreamland project was likely to have significant environmental effects, since it was
linked with the Arlington project it must follow that when the effects of the Arlington
project were considered cumulatively with the Dreamland project, those effects were
also likely to be significant. I do not agree. It was open to the decision-maker as a
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matter of judgment to conclude that even if the environmental effects of the Dreamland
project were likely to be significant, there were no significant cumulative effects. It
was open to the decision-maker to conclude that significant environmental effects
would be the free-standing consequences of the Dreamland project and were not to be
considered as part of the cumulative consequences of the Arlington development under
consideration. I have already given an example of that judgment reached by the
Highways Authority in its transport assessment.
55.
It is important, in my view, to distinguish between the free-standing effects of the
Dreamland development and the cumulative effects of both that development and
Arlington. If, as they were entitled to do, the Inspector and the Secretary of State
reached a conclusion that there were no significant cumulative effects, there was no
requirement to consider the free-standing consequences of the Dreamland project
merely because the two projects were linked. Still less is there any warrant for saying
that because they concluded there were no significant cumulative effects, they must
have ignored the requirement to consider cumulative effects.
56.
The decision of the Secretary of State dated 13 June 2013 agreed with the Inspector's
view. He said:
"24. The Secretary of State notes that the Inspector has relied on the
SD of 18 July 2012 and has not seen any reason to question that
direction and refer the matter to the Secretary of State for
reconsideration . . . the appeal proposals are not part of a wider
project that takes in the Dreamland site and furthermore there is no
need for a cumulative assessment with the Dreamland scheme,
given its status and the uncertainty that surrounds the Thanet
District Council Compulsory Purchase Order which is the subject of
a legal challenge. Taking into account the written submissions and
evidence presented to the inquiry, including that concerning the
matters to which Louise Oldfield drew attention, the Secretary of
State does not consider that these lead him to question his SD made
on 18 July 2012 and he is content that an Environmental Impact
Assessment is not required before the determination of this appeal."
57.
That was shortly expressed but it takes in all the reasons and considerations of the
Inspector. It was challenged because of the reference to the legal challenge to the
Compulsory Purchase Order. I agree with the Appellant that the mere fact that that
order was under challenge at the time was no ground for saying that the cumulative
effects of the two projects need not be considered. In fact, the challenge is now over.
The wording might have suggested that but it plainly does not mean it since, as the last
sentence and the reference to the Appellant's submissions makes clear, the Secretary of
State was well aware that the effects of both projects were considered cumulatively in
reaching the decision that no EIA was needed.
58.
I reject the second ground. The Inspector and the Secretary of State did take into
account the cumulative effects of both projects. This conclusion is not dependent on
the fact that, as it was said in argument, there was insufficient information about the
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Dreamland project. It was not suggested at the time there was and, in any event, I am
content to proceed on the basis there was ample material as to what the Dreamland
project entailed. But neither the Inspector nor the Secretary of State was required to go
further in the light of their judgment that the significant environmental effects were
likely to be the free-standing consequence of the Dreamland project and not of both
projects considered cumulatively.
59.
By the third ground, the Appellant sets herself an even higher hurdle. She contends that
it was irrational to conclude that there were no likely significant cumulative
environmental effects. I hope I have subjected the decision of the Inspector and his
report and the screening direction to sufficient analysis to demonstrate why that
submission is wrong. They concluded that there were no significant cumulative effects
and that the likely significant effects flowed from Dreamland and not from the
combined effect of both projects.
60.
I, of course, as the Inspector and the Secretary of State had to do, bear in mind what had
been there before and the extent to which the development would cause change. I must
also bear in mind that the mere fact that the likely effects of the development were
beneficial does not lead to the conclusion that there need not be an Environmental
Impact Assessment [see Ecologistas, paragraph 41]. But there is no ground for
successfully impugning the planning judgment as to the combined effects.
61.
This appeal took the opportunity to criticise the references in the screening decision to
urban development at boxes 15 and 16. But when one reads the Inquiry report it is
plain what is meant by that, particularly when one has regard to the evidence given by
the 20th Century Society as to the importance of the residential tower block at
Arlington House, typical, as it was, of its time. It was criticised as showing very little
appreciation of those architectural qualities, but the evidence as a whole explains what
was meant in the screening decision by "urban development".
62.
Ground 4 raised specific points in relation to the decision letter. It was argued that in
that letter the Secretary of State failed to reach rational decisions as to the retail
development. It is easy to understand the dismay of those living in Margate and
particularly the Appellant and those whom she represents, at the fact that what was
proposed and is proposed is a Tesco superstore, whereas Margate was chosen as a
Portas Pilot and the importance of different and smaller retail development was
emphasised in the evidence of Mary Portas in relation to her review. As she put it,
paragraph 160:
" . . . a new supermarket can dominate a locality and draw footfall
away from town centres."
63.
She went on to describe the importance of the development in the long term
regeneration of Margate where:
" . . . a very active and dedicated local community have created a real
buzz in Margate."
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64.
But this is not a matter for the Court. This was a matter for planning judgment and no
doubt the developer and Tesco will make sure that any building and architectural design
is sensitive to the needs of regeneration of that area near, as it is, to the sea front.
65.
The complaint was that the information as to drawing shoppers away from that part of
Margate to an out-of-town superstore was out of date. But that, as it emerged, was
hopeless even if it was appropriate, which it is not, for Judicial Review since there was
up-to-date information canvassed before the Inspector.
66.
Similarly, the problem of parking and restrictions for residents, as the Inspector rightly
said, were a matter of private law or planning judgment. Again, they can have no place
in challenges of this sort, confined as they are to matters of law.
67.
The irony behind the challenge which I dismiss, as I dismiss this appeal, is that
everyone believes in the regeneration of Margate and wishes it well. This type of
unsuccessful challenge was not in fact focused on the real grounds of objection and in
my view should not have been deployed to inhibit the successful regeneration of
Margate.
68.
MR TURNEY: My Lord, I am grateful. I appear today both for the Secretary of State
and for Metropolitan Property Realizations. My Lord, on behalf of the Secretary of
State I make an application for costs. There's a protective costs order so I make the
application for a very modest sum of £2,000 plus VAT as that represents the protective
costs order.
69.
LORD JUSTICE MOSES: Yes. So you ask for the application for Judicial Review
and the appeal to dismissed and those costs.
70.
MR TURNEY: My Lord, yes. There is, of course, no application from Metropolitan
Property for costs.
71.
LORD JUSTICE MOSES: Thank you very much. Mr Stookes.
72.
MR STOOKES: My Lord, I have no objection to the order on costs or the terms of the
order in dismissing the appeal and the application and the Judicial Review.
73.
My Lord, I am instructed to apply for permission to appeal the judgment in that order.
There are two grounds, as I see it, as it were, on the hoof that I feel are appropriate to
raise at this stage. The first is that the recital in the terms of the directive does refer to
-- that EIA needs to be carried out at the earliest possible stage and, my Lord, you have
indicated that the Dreamland project, which will have significant environmental effects,
won't be accounted for. This has been raised in the Court of Appeal in the case of
Birch v Barnsley and Lord Justice Sullivan referred to that the past has already been
sold by the time the Dreamland EIA comes about. That's the first point and we say that
the approach in the judgment doesn't take account of that.
74.
The second is about the question of significance which is ground 3, which you refer to
and you referred to the higher hurdle and earlier in the judgment you referred to Jones v
Mansfield and the standard or approach to significance and we say this point is a point
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of general public importance as to precisely what the standard of significance should
be. We say in EIA matters, which is not necessarily a planning judgment -- it can be
but not necessarily; it's determined whether EIA applies or not -- this point is a matter
of general public importance and needs to be considered accordingly. Those are the
two matters.
75.
LORD JUSTICE MOSES: Thank you very much. No, I'm not going to give
permission, you must go to their Lordships to ask. It seems to me that the matters
complained of in this case, particularly the failure to take Dreamland into account and
the conclusion reached were so obvious that there's really nothing for the Court of
Appeal to consider.
76.
MR TURNEY: My Lord, might I ask on behalf of my second client, Metropolitan
Property, that if there is to be an application to the Court of Appeal for permission that
that should be made within seven days rather than the 21 days which would ordinarily
be allowed. My Lord, there is a need to get on with this development and this matter
has been going on for some time.
77.
LORD JUSTICE MOSES: Trouble is, we've hit Christmas.
78.
MR TURNEY: My Lord, yes, and in my submission it would be therefore make sense
to have that application done before Christmas.
79.
LORD JUSTICE MOSES: It's not going to be done because nobody is going to
consider it. Because even the Court of Appeal office may be having a short break over
Christmas.
80.
MR TURNEY: My Lord, so be it. You have the application.
81.
LORD JUSTICE MOSES: Can't one say by 6 January or something?
82.
MR TURNEY: My Lord, I'm grateful.
83.
LORD JUSTICE MOSES: I'm just asking. I don't want to encourage them, I just wish
all the money and effort was going to be used to do what's best for Margate. Anyway,
there we are, I've heard what you say. What's the time limit in the --
84.
MR STOOKES: It's 21 days.
85.
LORD JUSTICE MOSES: Where would that take you to?
86.
MR STOOKES: Probably about the 6th.
87.
MR TURNEY: My Lord, I think that would be 2 January, so if we just leave it.
88.
LORD JUSTICE MOSES: Let's just leave it. Thank you very much, both of you.
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