R (on the application of Jones) v Mansfield District Council and another

Respondent council determining environmental impact assessment unnecessary for industrial estate development — Permission granted subject to requirement for further ecological survey — Whether council having sufficient information to form view that significant environmental effects unlikely — Appeal dismissed The appellant lived adjacent to land in respect of which the respondent council had determined to grant outline planning permission for the development of an industrial estate. The land was recognised by environmental agencies as being of potential importance for various species, including golden plovers and bats. The development fell within Schedule 2 to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which meant that an environmental impact assessment (EIA) would be required if the development were likely to have significant effects upon the environment in terms of its nature, size or location. After considering a number of reports and the representations of various consultees, the council took the view that no EIA would be required for the development. They subsequently confirmed the grant of permission, subject to an undertaking by the developer to obtain a full ecological survey of the site. The appellant sought judicial review of the council’s determination and the consequent grant of permission. She argued that, without the further surveys, the council had had insufficient information to enable them to form the necessary judgment as to whether the development would have significant environmental effects. The judge found that the council’s determination that an EIA would not be required had been reasonable and lawful, and held that the challenge to the grant of permission must therefore fail. The appellant appealed. She contended that, in order to give effect to the broad scope and purpose of the 1988 Regulations, and the European Directive (EEC) 85/337, to which they gave effect, Schedule 2 projects that might have significant environmental consequences should be subject to an EIA, because a conclusion that they would be unlikely to have significant effects could properly be reached only after a comprehensive assessment. Held: The claim was dismissed. Whether a proposed development was likely to have significant effects upon the environment involved an exercise of judgment or opinion. It was not a question of hard fact to which there could be only one possible correct answer in any given case. Accordingly, the role of the court was limited to one of review on Wednesbury grounds: Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2000] 3 PLR 111 considered. Although a planning authority had to have sufficient information to be in a position to make an informed judgment as to any environment effects, they were not required to resolve all uncertainties, or to undertake a detailed and comprehensive assessment of every aspect of the matter before making a decision on the desirability of an EIA: Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262; [2003] 2 P&CR 11 and Bellway Urban Renewal Southern v Gillespie [2003] EWCA Civ 400; [2003] JPL 1287 considered. Any uncertainties might or might not make it impossible reasonably to conclude that there would be no likelihood of significant environmental effects. It was possible, in principle, to have sufficient information even if certain details were not known and further surveys were to be undertaken: all would depend upon the circumstances of the individual case. In the instant case, the council’s planning committee had had a great deal of information about the potential environmental effects of the development. The imposition of conditions regarding surveys, and the acceptance of the developer’s undertaking, did not preclude the council from being satisfied that the project was unlikely to have any significant influence on the bird and bat populations. David Wolfe (instructed by Public Interest Lawyers) appeared for the appellant; John Steel QC and Sarah-Jane Davies (instructed by Browne Jacobson) appeared for the first respondents; the second respondent did not appear and was not represented. Sally Dobson, barrister