Planning permission – Stadium – Screening opinion – Defendant council granting permission for development of sports stadium in 2011 and 2012 – Claimant seeking judicial review of decisions – Whether defendants failing to carry out proper screening under environmental impact assessment (EIA) regime – Claims dismissed
The claimant lived near to a stadium that had been used by a football club under a series of temporary planning permissions. Since the late 1990s several applications for planning permission had been granted by the defendant city council, including proposals to increase the capacity of the stadium. Two of those permissions, granted in 2002 and 2004, were quashed in proceedings brought by the claimant. Another, granted in 2005, withstood his challenge both in the High Court and the Court of Appeal: [2006] EWHC 1337 (Admin); [2007] PLSCS 69 and [2009] EWCA Civ 1417. Another application in 2008 survived the claimant’s application for judicial review: [2009] EWHC 1639 (Admin); [2009] PLSCS 196 and [2009] EWCA Civ 1417.
Between 1998 and 2011, the stadium was used by a football club for its first team matches. From the start of the 2011/2012 season, the club moved to a new ground but its reserves and its women’s team still played in the stadium. Other sports clubs also still used the site. By mid-2011 much of the temporary development had been removed but the west stand and the turnstiles and the car park at the north-western end of the site remained.
In 2011 and 2012, the defendants granted planning permission for a project to improve the sports facilities at the stadium. The claimant brought two applications for judicial review. He objected to the proposals, as he had previously, alleging shortcomings in the screening under the regulations governing environmental impact assessment (“EIA”).
The claimant contended that the defendants had failed to screen the project as it ought to have done to comply with the statutory scheme for EIA. The defendants had variously: (i) failed to consider both the previous experience of more intensive and intrusive use of the site and the further intended proposed operations and to have regard to the project as a whole and to screen all potential effects; (ii) exceeded their discretion when considering the project’s potential effects on the environment; (iii) wrongly relied on an out of date guidance in Circular 02/99; (iv) relied on mitigation measures as a means of reducing the adverse effects of light and noise pollution; and (v) significantly breached the statutory code for EIA which the court should not exercise its discretion to sanction.
Held: The claims were dismissed.
(1) The starting point for a local planning authority undertaking a screening exercise had to be an accurate understanding of the project before it. The project had to be capable of being clearly defined. In the screening process, the decision-maker had to consider the development in its entirety, ascertain what the development was, how and when it would be constructed and how it would be used when complete. It had to discern what the physical nature and extent of the development would be, neither aggregating it with other projects that were in reality separate from it, nor sub-dividing it into portions that represented less than the totality of what was proposed. It might be necessary to consider whether, in addition to the proposed development, there was other development forming part of the same project. However, the project itself would not generally include development that was once on the site but had now been removed or whose use had come to an end, or further development that might later come forward. When identifying the project it had to screen, an authority did not have to resurrect the past or speculate about proposals the future might bring. Moreover, the decision-maker’s approach to establishing what the project was should not be dictated by the applicant’s strategy in promoting his development, whether in a single application or split into two or more separate proposals: Ecologistas en Accion-CODA v Ayuntamiento de Madrid (Case C-142/07) [2008] ECR I-6097 and Abraham v Region of Wallonia (Case C-02/07) [2008] Env LR 32 considered.
In the present case, apart from an admitted error in the 2011 screening opinion, the defendants had followed both the letter and the spirit of the EIA Directive (85/337/EEC) and the regulations and had not acted contrary to any relevant jurisprudence or to the guidance on EIA issued by the European Commission and their approach could not be faulted. Having correctly established what the project was, the defendants had considered its potential effects in a comprehensive and realistic way. They had not left out any cumulative effects that they ought to have considered and had not ignored any potential effects on the local or wider environment or on the living conditions of local residents.
(2) The defendants had properly considered whether the proposed development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The court would not undo a decision of a planning decision-maker where, as here, it had not been shown to be outside the range of reasonable decisions on the relevant facts. The defendants had been aware of the requisite degree of uncertainty as to environmental impact at the date of their decisions: R (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869; [2012] PLSCS 147 considered.
(3) The defendants had not based their screening decisions on the advice in Circular 02/99 without appreciating that it had to be read in the light of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824) and had not mislead themselves into a faulty approach: R (on the application of TWS) v Manchester City Council [2013] EWHC 55 (Admin) considered.
(4) On the facts, the defendants had not unlawfully taken into account mitigation measures that were going to be applied to the development either through conditions or a planning obligation if permission were granted. They were satisfied that the potential for noise and light pollution was predictable and could be tackled in the design of the proposal submitted for planning permission. They did not go beyond envisaging the operation of standard conditions and a reasonably managed development: R v South Cambridgeshire District Council, ex parte Lebus [2002] PLSCS 200; [2003] Env LR 17 and R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2003] PLSCS 227 considered.
(5) The court had a narrow discretion to withhold relief where unlawfulness had infected an EIA screening process and hence the grant of planning permission itself. In the present case, the claimant’s argument had prevailed only on the defendants’ admitted error in the 2011 screening opinion but the 2011 planning permission would not be quashed. A legally impeccable screening process had been completed before the 2012 planning permissions were granted and they would survive. One of those decisions was a fresh approval for the 2011 development making the first claim for judicial review academic. However the decisive point was that the 2011 project was not EIA development so that an EIA was not required and the claimants would suffer no real prejudice at this stage if the 2011 was not quashed.
William Upton (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; Harriet Townsend (instructed by instructed by the legal department of Brighton and Hove City Council) appeared for the defendants.
Eileen O’Grady, barrister
