Gillespie v First Secretary of State and others
Environmental impact assessment — Significant environmental effects — Secretary of State finding EIA not necessary for development project since proposed remediation measures would prevent significant effects upon environment — Judge holding remediation measures to be left out of account when assessing likely environmental effects — Appeal dismissed
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 upon 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 PPG 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*. He held that where a very 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.
Environmental impact assessment — Significant environmental effects — Secretary of State finding EIA not necessary for development project since proposed remediation measures would prevent significant effects upon environment — Judge holding remediation measures to be left out of account when assessing likely environmental effects — Appeal dismissed
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 upon 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 PPG 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*. He held that where a very 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.
Held: The appeal was dismissed.
The decision as to whether an EIA was necessary ought not to depend upon a test of whether a proposed measure could or could not be described as a standard condition. Each case would turn upon 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.
* Editor’s note: Gillespie v Secretary of State for Transport, Local Government and the Regions [2003] PLSCS 9.
Keith Lindblom QC, Peter Village QC and James Pereira (instructed by Masons) appeared for the appellant; David Wolfe (instructed by Richard Buxton, of Cambridge) appeared for the respondent.
Sally Dobson, barrister
