Berkeley v Secretary of State for the Environment, Transport and Regions and others

Appeal against non-determination and refusal of planning permission for two development schemes – Claimant raising issue of environmental impact assessment (EIA) at inquiry – Inspector finding no EIA necessary – Planning permission granted – Claimant applying for inspector’s decision to be quashed – Whether inspector erred in not referring EIA question to Secretary of State – Whether relevant council directives properly transposed into domestic law – Application dismissed – Appeal dismissed Berkeley Homes (BH), the third respondent, applied for planning permission in respect of two schemes (A and B) for the development of flats, some with B1 office space. Richmond London Borough Council, the second respondents, failed to determine the scheme A application within the requisite period and refused permission for scheme B. BH appealed. At the inquiry, the claimant appeared as an objector and raised the issue of environmental impact assessment (EIA). The claimant relied upon regulation 9(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, which provided that, where a question arose as to whether an application was an “EIA application”, and it appeared to the inspector that it was, he should refer the issue to the Secretary of State without determining the appeal. Regulation 2(1) defined EIA development to include development under Schedule 2 to the Act that was likely to have significant effects upon the environment. The criteria for inclusion within Schedule 2 were that the size of the development exceeded certain thresholds or that the development was in a “sensitive area”. Regulation 4(8) provided the Secretary of State with the power to direct that a particular development was an EIA development despite the fact that none of the Schedule 2 criteria were met. In his decision letter, the inspector concluded that neither scheme fell within Schedule 2, since their size fell below the relevant threshold and the site was not within a “sensitive area”. Accordingly, he determined that the schemes could not be EIA developments or the subject of an EIA application. The inspector did not consider that an EIA was necessary and allowed the appeal. The Secretary of State agreed and permission for both schemes was granted. The claimant sought to quash the inspector’s decision, pursuant to section 288 of the Town and Country Planning Act 1990. The judge held that it had not been open to the inspector to treat the application as an EIA application, because the relevant criteria and threshold tests in the regulations had not been met. The appellant appealed, contending that when Council Directives (EEC) 85/337/EEC and 97/11/EC were taken into account in construing the regulations, it could be seen that the inspector had erred in not referring the question of whether the application was an EIA application to the Secretary of State. In the alternative, it was submitted that the directives had not been properly transposed into national law. Held: The appeal was dismissed. 1. On the assumption that the regulations were compliant with Community law, the inspector could not have concluded that the development might be an EIA development. It did not fall into Schedule 1, it had not been in a sensitive area, the threshold had not been crossed and the Secretary of State had not made a direction under regulation 4(8). The Secretary of State was not obliged to make an examination in every case as to whether the application should be subjected to EIA procedures and therefore the inspector was not always bound to refer such questions to the Secretary of State under regulation 4(8). 2. The directives clearly envisaged that member states could establish criteria in advance, and that cases not within that criteria did not need to be subject to an EIA assessment. Situations could always be conceived in which, by an accumulation of notional site and notional developments, a devastating effect on the environment could be produced. Member states were under a duty to consider whether the criteria that they established would “ensure that, before consent is given, projects likely to have significant effect on the environment” would be subject to an EIA. They had to take into account possible cumulative effects and the criteria in Annex III to Directive 85/337. However, there was no reason to suppose that the Secretary of State had failed to do that. Eleanor Sharpston QC and Richard Harwood (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Richard Drabble QC and James Maurici (instructed by the Treasury Solicitor) appeared for the first respondent; Anthony Dinkin QC and Richard Ground (instructed by GCL Solicitors, of Guilford) appeared for the second respondents. Thomas Elliott, barrister