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

Appeal against non-determination and refusal of planning permission for two development schemes – Claimant raising environmental impact assessment at inquiry – Inspector finding no environmental assessment necessary – Planning permission granted – Whether inspector should have considered possibility of Secretary of State exercising power to direct that schemes were EIA development – Whether Secretary of State should have considered whether to make a direction – Regulation 4(8) of Town and Country Planning (Environmental Impact Assessment) Regulations 1999 – Claim 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. The second respondents, Richmond London Borough Council, 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). She relied upon regulation 9(2) of the Town and Country Planning (Environmental Impact Assessment) 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 and should not determine the appeal. Regulation 2(1) defined EIA development to include development under Schedule 2 to the Act that was likely to have significant effects on 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 a 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 development 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 with the inspector’s view 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, on the grounds, inter alia, that: (i) the Secretary of State should have considered whether to make a direction under regulation 4(8); and (ii) the inspector should have considered whether the Secretary of State would have considered exercising his powers under regulation 9(2), had the matter been referred to him under the regulation. Relying upon Berkeley v Secretary of State for the Environment [2000] EGCS 86, the claimant submitted that the regulations had to be interpreted so as to give effect to the purpose of the EC directive that they were intended to implement. It was submitted, on this approach, that the Secretary of State was under a general obligation to consider exercising the regulation 4(8) power, so that schemes such as the present, which fell below the thresholds or criteria in the regulations, would not slip through the net. Held: The claim was dismissed. 1. It was not open to the inspector to treat the application as an EIA application, because the criteria and threshold test of the regulations had not been met. The inspector’s assessment upon that issue was impeccable. It was insufficient to say that it might be an EIA application because the Secretary of State, if appraised of it, might have made it one. 2. It was inherent that some projects would fall below the thresholds or criteria but would still have some environmental effect. The very existence of the criteria and thresholds showed that the directive acknowledged that some cases might fall below the criteria, and that these were not to be assessed. It was difficult to see the purpose of the thresholds and criteria if the test to be applied was whether the project had significant environmental effect. Thus, to enlarge regulations 9(2) and 4(8), creating a general obligation to consider the exercise of the regulation 4(8) power in respect of projects that fell below the thresholds and criteria, would undermine the directive: Berkeley v Secretary of State for the Environment distinguished. Richard Harwood (instructed by Richard Buxton, of Cambridge) appeared for the claimant; James Maurici (instructed by the Treasury Solicitor) appeared for the first respondent; Anthony Dinkin QC and Richard Ground (instructed by Gellhorn Cooney Laugherne, of Guildford) appeared for the third respondents. Sarah Addenbrooke, barrister