R (on the application of Mouring and another) v West Berkshire District Council

Planning permission – Area of outstanding natural beauty (AONB)–- Environmental impact assessment – Defendant local authority granting planning permission for warehouse – Defendants failing to conduct an environmental impact assessment (EIA) – Claimants applying for judicial review – Whether EIA required prior to grant of planning permission – Whether proposed development capable of amounting to EIA development – Application granted The interested parties applied to the defendant local authority for planning permission to erect warehouse premises together with integral ancillary offices and staff parking at a site located near Thatcham, Berkshire. The site was situated in an area of outstanding natural beauty (AONB). At the time of the application, it was an unused field. The warehouse was required to store materials to be used for the furtherance of the interested parties’ business, rather than for general public access. The planning officer employed by the defendant local authority recommended refusal but the planning committee took the decision not to follow her recommendation and granted planning permission. There had been no reference to an environmental impact assessment (EIA) in either the officer’s report or the planning committee’s decision, nor were any steps taken to consider whether the warehouse had been an EIA development. The claimants applied for judicial review of the decision to grant planning permission. They contended that the development for which permission had been sought was capable of falling within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293) so that the application amounted to an application for planning permission for an EIA development. Furthermore, the development was capable of having significant effects on the environment.Held: The application was granted.(1) A wide and generous interpretation was to be given to the ambit of schedule 2 to the 1999 Regulations when considering what projects were capable of falling within that schedule. Accordingly, the term “infrastructure” within the meaning of schedule 2 was to be interpreted widely and included developments provided to facilitate the growth of industry. Moreover, for the purposes of schedule 2, the words “urban development project” had to be seen as encompassing projects which were urban in nature regardless of their location: R (on the application of Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140; [2003] 2 PLR 42 applied; European Commission v Spain (Case C-332/04) [2006] ECR I-00040 considered.(2) In the present case, the warehouse had clearly been capable of amounting to a schedule 2 development on the basis that it could properly be regarded as “infrastructure” within the meaning of schedule 2 as it constituted the means by which a business carried out its economic and commercial undertakings. The fact that the present case had not involved a general public facility did not mean that it necessarily fell outside what could properly be regarded as infrastructure for the purposes of the 1999 Regulations. Giving a wide and generous interpretation to schedule 2, prima facie the warehouse had been capable of falling within the definition of an “urban development project” for the purposes of the Regulations. Therefore, the defendants should have taken the steps required by the Regulations, such as adopting a screening opinion, in order to determine whether the proposed warehouse amounted to an EIA development. In all the circumstances, it was impossible to suggest that the proposed warehouse could not properly be regarded as development that had a significant impact on the sensitive area on which it was to be constructed. The decision to grant planning permission would be quashed.Richard Wald (instructed by Clifford Chance LLP) appeared for the claimants; Megan Thomas (instructed by West Berkshire District Council) appeared for the defendants. Eileen O’Grady, barrister