Property law reports

LEGAL UPDATE

TOWN AND COUNTRY PLANNING: ENVIRONMENTAL IMPACT

Environmental impact assessment - significant environmental effects - secretary of state finding environmental impact assessment not necessary for development project since proposed remediation measures would prevent significant effects on environment - judge holding remediation measures to be left out of account when assessing likely environmental effects - appeal dismissed

Bellway Urban Renewal Southern v Gillespie: CA (Lords Justice Pill, Laws and Arden):

27 March 2003

In 1998, the secretary of state granted planning permission to the appellant, contrary to his inspector's recommendation and the objections of the respondent, to redevelop the site of a former gasworks for residential use.

The scheme constituted an urban development project, and was therefore governed by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.

Under those regulations, an environmental impact assessment (EIA) would be required if a proposed development was likely to have significant effects on the environment.

The secretary of state took the view that such effects would not arise in this case, since the initial planning application contained a proposal relating to remediation works that would be sufficient to deal with the heavy contamination on the site, and to comply with the planning and pollution control policies in Planning Policy Guidance 23.

On a challenge by the respondent, under section 288 of the Town and Country Planning Act 1990, the judge found that the secretary of state had erred in the test that he applied in determining that issue - Gillespie v Secretary of State for Transport, Local Government and the Regions [2003] PLSCS 9.

He held that where a real risk of environmental damage was present, as in the instant case, the secretary of state was not entitled to find that an EIA was not required on the basis of his view that the proposed remediation measures would be effective in dealing with the problem.

He was instead required to order an EIA to enable the public to make representations as to the suitability and effectiveness of those measures.

The judge recognised that standard conditions could be taken into account in assessing likely environmental effects, but he considered that the special and elaborate measures proposed by the appellant ought to have been discussed and assessed within the context of the EIA procedure.

The appellant appealed.

Keith Lindblom QC, Peter Village QC and James Pereira (instructed by Masons) for the appellant; David Wolfe (instructed by Richard Buxton, Cambridge) for the respondent.

Held: the appeal was dismissed.

The decision as to whether an EIA was necessary ought not to depend on a test of whether a proposed measure could or could not be described as a standard condition.

Each case would turn on its particular facts, and the secretary of state was not obliged, when making his screening opinion on whether an EIA was required, to ignore the remedial measures submitted as part of the planning proposal.

He was not required to compartmentalise the development proposal and the proposed remedial measures and to consider only the former; all elements of the project would be relevant to the decision: British Telecommunications plc v Gloucester City Council [2001] EWHC Admin 1001; [2002] JPL 993; R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin); and World Wildlife Fund v Autonome Provinz Bozen [2000] 2 PLR 1 considered.

The secretary of state had to make a practical judgment as to whether the project would have significant environmental effects.

Although the complexity of the project and the controversial nature of any remedial measures were important factors, they did not predetermine that decision: R v Rochdale Metropolitan Borough Council, ex parte Milne [2001] Env LR 22 applied.

However, the secretary of state had erred in his approach to the instant case by taking the view that the proposed remediation measures provided a complete answer to the question of whether significant environmental effects were likely.

The proposed condition indicated that contingencies and uncertainties were involved in the development proposal.

Thus, when making his screening opinion, the secretary of state had not been entitled to assume that a favourable and satisfactory result would be achieved at each stage.

TOWN AND COUNTRY PLANNING: ENABLING DEVELOPMENT

Appellant owning green-belt land and listed buildings - appellant claiming that development of land would benefit listed buildings under English Heritage policy guidelines - appellant failing to adduce appropriate financial evidence - appeal dismissed

Jewson Holdings v First Secretary of State: QBD: Administrative Court (Mr Justice Davies):

21 March 2003

The appellant was refused planning permission to develop green-belt land on which were sited two listed, but dilapidated, barns in a poor state of repair.

The appellant appealed, claiming that the development of office accommodation would finance the restoration of the listed buildings.

It argued that, as such, the scheme constituted 'enabling development' as described in the English Heritage policy document Enabling Development and the Conservation of Heritage Assets, and comprised a special circumstance that outweighed the presumption against development in the green belt.

The inspector found that the appellant had failed to demonstrate that the size of the proposed development was the minimum necessary to secure the repairs to the listed buildings and their long-term survival.

Thus the definition of 'enabling development' as set out in paragraphs 4.6.1 and 5.4.1 of the policy document.

The appellants appealed that decision under section 288 of the Town and Country Planning Act 1990.

Neil Cameron (instructed by Herbert Mallam Gowers, Oxford) for the appellant; Philip Coppel (instructed by the Treasury Solicitor) for the first respondent.

Held: the appeal was dismissed.

Proposals for enabling development had to be the minimum required to ensure the future of heritage assets, and the harm caused by the development had to be outweighed by the public benefit.

Financial issues were of central importance in determining the matter because such proposals would be considered only where funds for the restoration of the buildings could not have been generated in any other way.

Detailed financial information on the proposed development was a prerequisite.

The appellant had to submit evidence that a range of development strategies had been considered and that real efforts had been made to market the properties.

In this case, the developers had failed to provide evidence of full market testing and had instead submitted appraisals of profit.

The inspector had been correct to conclude, on the evidence before him, that no effort had been made to market the site at a realistic price.

The importance of full market testing was emphasised in the English Heritage policy document, and lack of the same was sufficient to stop the claim at that point.

The inspector was therefore entitled to dismiss the appeal.