R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government

Development – Planning permission – Environmental impact assessment – Defendant Secretary of State deciding environmental impact assessment not required for demolition of Victorian chapel – Claimant applying for judicial review on ground that demolition part of larger project to be considered – Whether defendant failing to consider demolition as part of larger project – Whether defendant’s failure to have regard to impact of project or consider cumulative effects of demolition was unlawful – Application dismissed Klondyke was an area of Sefton in Liverpool dominated by small two-storey Victorian terraced housing with no front or back gardens. In response to a government housing market renewal initiative, the local authority (the interested party) published supplementary planning guidance in relation to Klondyke to be used as a material consideration when deciding on development proposals within the area. The guidance stated that the interested party would support development proposals which helped to regenerate the neighbourhood in a planned way and reflected the phasing requirements set out in the guidance, which referred to three phases covering a period from 2004 to 2012. The area included a Victorian chapel which was initially excluded from the proposed clearance area as a landmark providing variety and interest within the built environment which ought to be preserved. However, a subsequent development brief in relation to phase 3 envisaged the demolition of the chapel as part of the landscape strategy. In January 2012, on the application of the interested party, the defendant secretary of state gave a screening opinion that an environmental impact assessment (EIA) would not be required for the demolition of the chapel. The claimant took the view that the phased development constituted  “salami slicing”, ie the splitting up of projects into small sub-projects so that each part became below the thresholds for EIA and therefore avoiding (whether deliberately or not) the need for an EIA. It applied for judicial review of that decision contending among other things that, as the proposed demolition of the chapel was part of a larger project, the defendant’s failure to consider the demolition as part of the phase 2 and 3 demolition and redevelopment proposals or to have regard to the impact of the project or the cumulative effects of the demolition was unlawful. The defendant argued that there was a distinction between projects which were an integral part of a more substantial development which involved a single project being split into parts and individual projects which were justified on their merits and/or which would be pursued independently of some wider policy, even if the development or demolition involved could at some future point also be part of a more comprehensive proposal. In the latter case there was no unlawful or impermissible avoidance of the EIA regime. There was no inconsistency between a project being both a separate, independent and/or freestanding project now and also potentially at some future point part of a wider whole. Held: The application was dismissed. (1) The question whether the development was of a category described in either Schedule 1 or 2 to the  Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824) had to be answered strictly in relation to the development applied for, not any development contemplated beyond that. However, the further question to be asked in relation to a Schedule 2 development as to whether it would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location, had to be answered by considering any wider project. The proposal ought not to be considered in isolation if, in reality, it was properly to be regarded as an integral part of an inevitably more substantial development: R v Swale Borough Council, ex parte Royal Society of Protection of Birds [1991] 1 PLR 6 and R (on the application of Candlish) v Hastings Borough Council [2005] 4 PLR 60 considered. On the facts of the present case, the defendant had not erred in treating the project or development in relation to which he had been obliged to make a screening direction as being the proposal to demolish the chapel for which the interested party had issued a prior application notice. The relevant project had not been the whole prospective phases 2 and 3 demolition and redevelopment but the proposed demolition and the defendant had been obliged to give a direction as to whether the demolition would or would not be likely to have significant effects on the environment. (2) When considering in any case whether the relationship between the development under consideration and a larger scheme of which it was said to be a part required the effects of the latter to be taken into account, it was useful to consider whether the absence of such a requirement would enable the developer to defeat the object of the regulations by piecemeal development proposals. In practice, the failure to take account of the cumulative effect of several projects did not mean that they all escaped the obligation to carry out an assessment when, taken together, they were likely to have significant effects on the environment. That could occur if, by salami slicing a large project into a series of sub-projects, each sub-project escaped an EIA because its small size did not satisfy the definitions in schedules 1 and 2 to the 2011 Regulations; or by the grant of planning permission for a smaller project, pre-empting or foreclosing the possibility of an effective EIA of the larger project when it was considered in due course by conceding a principle applicable to both. The nature of the relationship between the proposed demolition of the chapel and the wider phase 2 and 3 demolition and/or redevelopment was not such as to give rise to any realistic risk of either of those consequences resulting from a consideration of the proposed demolition of the chapel in isolation from phases 2 and 3. Accordingly, the defendant had not erred by failing to take into account any potential effects on the environment of phases 2 and 3: R (on the application of Bowen-West) v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 applied. Richard Harwood QC (instructed by Richard Buxton Solicitors) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the defendant. Eileen O’Grady, barrister