|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kenyon, R (On the Application Of) v Wakefield Council & Ors  EWHC 3485 (Admin) (18 December 2018)
Cite as:  EWHC 3485 (Admin)
[New search] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
|- and -
|SECRETARY OF STATE FOR
COMMUNITIES AND LOCAL GOVERNMENT
(1) WAKEFIELD COUNCIL
(2) HEMSWORTH TOWN COUNCIL
(3) SAUL CONSTRUCTION LIMITED
Carine Patry (instructed by the Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 22 November 2018
Crown Copyright ©
MRS JUSTICE LANG :
i) The Defendant failed properly to consider the cumulative environmental effects of the proposal in his screening direction;
ii) The Defendant placed undue reliance upon conditions in an attempt to remedy the adverse environmental effects which were likely to arise from the proposal;
iii) The Defendant failed to consider other relevant environmental matters relevant to the proposal, including loss of woodland, open space and recreation areas; flood risk; and the increase in greenhouse gas emissions generated by the new homes.
The legal framework
"(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.
(2) The events referred to in paragraph (1) are—
(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development.
(a) The Secretary of State may direct that these Regulations shall not apply in relation to a particular proposed development specified in the direction either—
(i) in accordance with Article 2(3) of the Directive (but without prejudice to Article 7 of the Directive), or
(ii) if the development comprises or forms part of a project serving national defence purposes and in the opinion of the Secretary of State compliance with these Regulations would have an adverse effect on those purposes;
(b) Where a direction is given under paragraph (4)(a) the Secretary of State must send a copy of any such direction to the relevant planning authority.
(5) Where a direction is given under paragraph (4)(a)(i) the Secretary of State must—
(a) make available to the public the information considered in making the direction and the reasons for making the direction;
(b) consider whether another form of assessment would be appropriate; and
(c) take such steps as are considered appropriate to bring the information obtained under the other form of assessment to the attention of the public.
(6) Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.
(7) Where a local planning authority adopts a screening opinion under regulation 5(5), or the Secretary of State makes a screening direction under paragraph (3)—
(a) that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and
(b) the authority or the Secretary of State, as the case may be, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (a) to the person who proposes to carry out, or who has carried out, the development in question.
(8) The Secretary of State may make a screening direction either—
(a) of the Secretary of State's own volition; or
(b) if requested to do so in writing by any person.
(9) The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of "Schedule 2 development" is satisfied in relation to that development.
(10) The Secretary of State shall send a copy of any screening direction and a copy of the written statement required by paragraph (7)(a) to the relevant planning authority."
(i) Characteristics of development;
(ii) Location of development; and
(iii) Characteristics of the potential impact.
"Characteristics of development
The characteristics of development must be considered having regard, in particular, to—
(a) the size of the development;
(b) the cumulation with other development;
(c) the use of natural resources;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of accidents, having regard in particular to substances or technologies used."
"Location of development
The environmental sensitivity of geographical areas likely to be affected by development
must be considered, having regard, in particular, to—
(a) the existing land use;
(b) the relative abundance, quality and regenerative capacity of natural resources in the area;
(c) the absorption capacity of the natural environment, paying particular attention to the following areas—
(ii) coastal zones;
(iii) mountain and forest areas;
(iv) nature reserves and parks;
(v)[areas classified or protected under Member States' legislation], areas designated by Member States pursuant to Council Directive 2009/147/EC on the conservation of wild birds and Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora;
(vi) areas in which the environmental quality standards laid down in EU legislation have already been exceeded;
(vii) densely populated areas;
(viii) landscapes of historical, cultural or archaeological significance."
"Characteristics of the potential impact
The potential significant effects of development must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to—
(a) the extent of the impact (geographical area and size of the affected population);
(b) the transfrontier nature of the impact;
(c) the magnitude and complexity of the impact;
(d) the probability of the impact;
(e) the duration, frequency and reversibility of the impact."
The screening direction
The decision letter
The written statement
"Full Statement of reasons as required by 4(5)(a) of amended EIA Regulations including conclusions on likeliness of significant environmental effects.
Schedule 3 selection criteria for Schedule 2 development refers:
1 (a) – (f) regarding characteristics of development
The proposal is for residential development of 150 homes (outline with means of access only).
2 (a)-(c) (i) – (viii) regarding location of development
The application site of the proposal is a 6.01 hectares brownfield site. It is set within an urban environment immediately surrounded by other housing/commercial property, and beyond is further housing/commercial properties and community facilities.
3 (a) – (e) regarding characteristics of potential impact
The proposed development exceeds the criterion/threshold of 5 hectares for Schedule 2, Category 10 (b) development. The Council considers the proposed development, including in terms of issues of noise, odour, emissions, dust, land contamination and air quality, is not likely to result in significant effects, and therefore that the proposal is not EIA development. More specifically in relation to land contamination resulting from past land use, the Council is of the view that issues can be controlled through condition. The Council has also considered cumulative impact, and is of the view that given the nature of the proposal i.e. residential dwellings in the wider environmental context of an urban area, the application is not likely to result in significant effects.
The Secretary of State notes the Council's recent screening opinion for the proposed development, and for the information supplied with the application, and has had due regard to Planning Practice Guidance on assessing environmental impacts. Whilst there are land contamination issues on the application site, this has been investigated and measures/mitigations are within supporting information to the proposal, and the Council has referred to conditions should the proposal receive permission. In view of this, the Secretary of State considers this issue does not result in significant effect, over and above that which is normally present at an existing developed site.
The application will also result in impact from an increase in traffic in the locality, and from noise/dust/odour, from both the construction and operational phases but the Secretary of State notes the application site is not in any designated area nor is it an AQMA. In respect of these issues, the Secretary of State has considered the evidence before him, and is of the view that the proposal will not result in a likely significant effect, above that which any urban development proposal on an existing developed site would normally present. Overall, he is of the view there are no likely significant impacts resulting from the proposed development and EIA is not required."
The screening analysis
4 Are there any areas on or around the location which contain important, high quality or scarce resources e.g. groundwater, surface waters, forestry, agriculture, fisheries, tourism, minerals, which could be affected by the project?
Consideration: The location for the proposed development is in a mining area which may contain unrecorded mining related hazards, however the site is not located in a Development High Risk Area as identified by the Coal Authority. The site is a former brickworks quarry which dates back to approximately 1900 which then underwent partial infilling with domestic wastes in 1950/60s. Restoration occurred in the 1980s with colliery spoil and more recently the land has been used by the developer of a boundary site during construction of new houses on the adjacent land. Resulting from this action and former use is land contamination including a moderate risk from ground gas, and risk of potential pollution to surface and ground water. As regards land contamination, the Applicant has supplied a Geo-environmental Ground Investigation Report which details that in three, of twenty-two, hot spot areas, materials should be removed to enable to the safe redevelopment of the site for residential purposes. The remainder of the report does not confirm anything highly unusual at the application site but recommends practical steps of excavation of soil from the site and storage off-site, and back-filling with clean imported granular material complying with specific specification. The Council's Land Quality Officer has reviewed the supporting information to the proposal, has raised queries with content, and resulting from this is a condition would be requested to secure a remediation strategy should the proposal progress to planning permission. No objection has been raised by the Environment Agency. The Secretary of State has taken note of all the above, and concludes the site/area is of low sensitivity and therefore the proposal is unlikely to result in significant effect.
Waste and pollution
6 Will the Project release pollutants or any hazardous, toxic or noxious substances to air?
Consideration: During clearance of the site and construction, there is potential for pollutants to be released in to the air however this would be managed through standard legislation/regulation. See also Q4 regarding contaminated land. It is not considered the operational stage will release hazardous substances in to the air beyond those associated with a standard urban development of housing.
8 Are there any areas on or around the location which are already subject to pollution or environmental damage (e.g. contamination, or where existing legal environmental standards at any level are exceeded such as AQMAs etc) which could be affected by the project?
Consideration: The site is not evidenced as within any Air Quality Management Area (AQMA). However, there is an AQMA at a junction of Cross Hill, and traffic for the development is likely to add to existing traffic using this junction. However given the scale of the proposed development, is not considered to have likely significant effects.
14 Is the project in a location where it is likely to be highly visible to many people?
Consideration: At its southern boundary, the application site is not visible to individuals due to an area of trees which screens the site from neighbouring houses. To the west, north and east there is housing, and some commercial property, and the application site will be visible to residents and business users through the gaps which exist between buildings. It is not considered that there will be any likely significant effects.
17 Are there existing, land uses on or around the location e.g. homes, gardens, other private property, industry, commerce, recreation, public open space (including parks), community facilities, agriculture, forestry, tourism, mining or quarrying, hospitals, schools, places of worship, community facilities which could be affected by the project?
Consideration: see Q14. Beyond the roads (which included residential and commercial buildings) that surround the application site are churches, community facilities and schools. During the construction phase, these may be impacted from pollution/particle emission and emissions from plant and machinery. During the operation phase, there may also be some impact from urban emissions (vehicles) but this would not be over and above what would be expected in a normal urban area and it is not considered that there will be any likely significant effects.
18 Are there any areas on or around the location which are densely populated or built-up, which could be affected by the project?
Consideration: see Q14 and Q17. It is considered the local area is not as densely populated or built up as in inner-cities, and while there may be some impact from construction and operational phases, this would not be over above what would be expected in a normal urban area and it is not considered that there will be any likely significant effects.
19 Are there any transport routes on or around the location which are susceptible to congestion which could be affected by the project?
Consideration: see Q15 above. Surrounding roads are B roads. There are no major roads (motorways) in close proximity to the application site. Although patterns of local road use will be affected, by an increased number of residents, the proposal is not likely to be a significant generator or new trips onto the network.
21. Are there any existing or future land uses on or around the location or beyond (e.g. trans-frontier) which could be affected by the project (eg including because of cumulative impact)?
Consideration: See Q8, 14, 17 & 18. Beyond this proposal at this application site, there has been new housing of 25 and 14 dwellings constructed on the boundaries of the site to the north/north east respectively. It is also noted that there is currently a proposal for 24 houses to the southern boundary with the Council which is presently at the consultation stage. The Secretary of State has considered these applications in terms of their size and scale and the context of the local area. The local area is urban – residential with some commercial and given this together with the size and scale of the development completed/proposed, the Secretary of State considers that while there may be some cumulative impact, this would not be to the extent that it would be likely to result in significant cumulative impact."
The Council's screening opinion
"Characteristics of development
The cumulation with other development
3.6 The site forms a housing allocation within the Council's adopted Site Specific Policies Local Plan and has an indicative capacity of 179 dwellings on an area of approximately 6ha. It is noted that new housing has recently been constructed to the boundaries of the site. Application no: 09/00883/FUL was for 25 houses located adjacent to Kirkby Road, to the north east of the application site. A further development of 14 dwellings providing social housing has been completed to the north of the site (application no: 09/01522/FUL). There is a housing allocation in the Council's Site Specific Policies Local Plan (HS53, Kirkbygate, Hemsworth) located to the southern boundary of the application site off Kirkbygate which has an indicative capacity of 25 dwellings. The Council is currently considering an application on this site for 24 dwellings (15/01592/FUL).
3.7 Slightly further afield, there is a housing allocation located off Grove Lane to the north east of the application site which has full planning permission for 25 dwellings and work on site have commenced. A further permission for 7no. dwellings (13/0153/OUT and 16/01932/REM) on land at Broad Oaks has also been granted permission.
3.8 There are 2 further housing allocations within the Site Specific Policies Local Plan within Hemsworth but these are not in the immediate vicinity of the application site. There is an allocation to the west of the site off Ashfield Road (HS54) which has an indicative capacity of 74 houses and a site to the north west of the town centre at West End (HS55) which has an indicative capacity of 160 dwellings.
3.9 Applications for a new Community Building at Bullenshaw Road, Hemsworth (08/00007/FUL) and new Sports Facilities (comprising a flood lit all weather multi use pitch, and a full sized grass football pitch), changing rooms and car park at Sandygate, Hemsworth (08/00872/FUL) have been approved, the developments have been completed and are in use.
3.10 Given the scale of the current proposal, which is an allocated housing site within the Local Development Plan, together with the above mentioned development and possible future development within the vicinity of the site, it is considered that in the context of the wider settlement, there would not be likely to be any significant cumulative environmental impacts.
Pollution and nuisances
3.13 Issues of noise, odour, emissions, dust, land contamination and air quality are assessed in the 'characteristics of potential impact' section at paragraphs 3.20 – 3.27 but these are considered to not be likely to have significant effects on the environment.
Characteristics of potential impact
3.20 The application site has been fenced off and has not been used for sport and recreation for a number of years. The proposed residential development of the site will result in additional traffic and there will be an impact in respect of traffic generation, access, servicing, parking and highway safety issues associated with the development (in both its construction phase and once completed). It is noted that, should the proposal for residential development not come forward, bringing the site back into use as a sports facility would have an impact in terms of additional traffic associated with the use of the site. It is considered, given the scale of development proposed, that the impacts from the complete development would not be likely to have significant effects on the environment. The construction phase will result in additional traffic from construction workers and particularly from large construction vehicles associated with deliveries and removal of any wastes and/or contaminated materials from the site. Although the current proposal would result in additional traffic movements and other associate impacts, it is considered, given the limited site area and scale of development, that the traffic and other associated issues will not be likely to have a significant impact on the environment.
3.23 The site has not been used for some time but could be brought back into use and there would be a degree of traffic associated with this use. The site is not located in an Air Quality Management Area (AQMA) although it is noted that there is an AQMA at the road junction at Cross Hill, Hemsworth and traffic from the development, both during construction and once completed, is likely to add to standing traffic at this junction. The vehicle emissions include nitrogen dioxide and carbon dioxide which can have an adverse impact on the environment. However, in view of the scale and location of the proposal, it is considered that the impact on air quality would not be likely to have any significant effects on the environment.
3.24 The proposed housing would not result in significant increases in odour and emissions. Emissions relating to associated traffic have been discussed above. The housing will result in additional noise both during construction and once completed and there will also be additional light emissions when compared to the previous use of the site for sport and recreation. The site is located in a predominantly residential area within the settlement boundary and, given the scale and location of the development, and it is considered that any noise and light emissions would not result in a significant environmental impact.
3.25 The site is located in a mining area which may contain unrecorded mining related hazards. The site is not situated in a Development High Risk Area as identified by the Coal Authority and the Coal Authority's Standing Advice is appropriate. It is therefore considered that any issues arising from historic coal mining would not be likely to have any significant effect on the environment.
3.26 The site is a former brickworks quarry which dates back to around the early 1900s which was then partially infilled with domestic wastes in the 1950s/60's. Restoration of the site occurred in the 1980s with what is believed to be predominantly colliery spoil to bring the ground levels up to surrounding levels. It is also noted that the site has been utilised by the developer during construction of the new housing to the boundary of the site. Land contamination is known to exist from the supporting information submitted with the application and, given the above, there is a moderate risk from ground gas. There is also a risk of potential for pollution to surface and groundwater. The Council's Land Quality Officer has raised a number of queries in respect of the supporting information submitted with the application which will require addressing by the developer should planning permission be forthcoming prior to commencement of development and a condition would be requested to secure a remediation strategy. No objections have been raised by the Environment Agency. It is considered that, although further information would be required prior to any development on site commencing, it is considered that the proposals would not be likely to have any significant effect on the environment.
3.28 There are considered to be no significant, potential effects of the development when assessed against the criteria within Schedule 3, Part 3 sections (a) to (e) of the 2011 Regulations, which includes: (i) the extent of the impact (geographical area and size of population), (ii) the transfrontier nature of the impact, (iii) the magnitude and complexity of the impact, (iv) the probability of the impact, (v) the duration frequency and reversibility of the impact.
4.1 Having regard to Schedule 3 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 and the advice in Circular 02/99, the following conclusions are drawn in relation to the proposals:-
- Taking account of the nature and scale of the development, it is considered that its impacts would not be likely to give rise to significant environmental effects.
- It is considered that the locality is not sensitive or vulnerable to the extent that the proposed development would be likely to have significant environmental effects; and
- The development is considered to not be one with particular complex and hazardous effects.
5.1 On the basis of the above, and in accordance with regulations 7 and 5(4), (5) of the 2011 Regulations, it is considered that the proposals do not constitute EIA development."
The Claimant's grounds for judicial review
"Proper and timely compliance with the law in this field matters. It matters, first, because the Government is as much subject of the law as any citizen or any other body in the UK. Accordingly, it is obliged to comply with the Directive and the Regulations and with the orders of the court. Second, it matters because, as is common ground between the parties to this litigation, a failure to comply with these legal requirements exposes the citizens of the UK to a real and persistent risk of significant harm. The 2017 Plan says that "poor air quality is the largest environmental risk to public health in the UK. It is known to have more severe effects on vulnerable groups, for example the elderly, children and people already suffering from pre-existing health conditions such as respiratory and cardiovascular conditions". As I pointed out in the November 2016 judgment, DEFRA's own analysis has suggested that exposure to nitrogen dioxide (NO2) has an effect on mortality "equivalent to 23,500 deaths" every year."
"25 The correct test, submitted Mr Maurici on behalf of the Secretary of State, is that specified in regulation 2: Is the development likely to have significant effects on the environment?
26 He accepted that the expression "is likely to have" in the Directive and Regulations means no more than that there is a serious possibility of it happening. In R (Bateman) v South Cambridgeshire DC  EWCA Civ 157, Moore-Bick LJ, with whom Jackson LJ agreed, stated, at paragraph 17:
"In my view something more than a bare possibility is probably required, though any serious possibility would suffice."
27 In R (Morge) v Hampshire County Council  EWCA Civ 608, Ward LJ, with whom Hughes LJ and Patten LJ agreed, stated, at paragraph 80, that:
"'likely' connotes real risk and not probability."
28 The test and approach to be applied were stated in Jones v Mansfield  Env LR 21. At paragraph 17, Dyson LJ stated:
"Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion."
29 At paragraph 38, Dyson LJ stated:
"But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie). The effect on the environment must be "significant". Significance in this context is not a hard-edged concept: as I have said, the assessment of what is significant involves the exercise of judgment."
Carnwath LJ stated, at paragraph 61:
"Furthermore, the word 'significant' does not lay down a precise legal test. It requires the exercise of judgment, on technical or other planning grounds, and consistency in the exercise of that judgment in different cases. That is a function for which the courts are ill-equipped but which is well-suited to the familiar role of planning authorities, under the guidance of the Secretary of State.""
"23. In R. (on the application of Jones) v Mansfield District Council  Env. L.R. 21 Carnwath L.J., as he then was, emphasised (in paragraph 58 of his judgment) that "the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle race", and that "it does not detract from the authority's ordinary duty, in the case of any planning application, to inform itself of all relevant matters, and take them properly into account in deciding the case."
24. In R. (on the application of Bateman) v South Cambridgeshire District Council  EWCA Civ 157 Moore-Bick L.J. said (in paragraph 20 of his judgment) that it was important to bear in mind "the nature of what is involved in giving a screening opinion". A screening opinion, he said, "is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others". Nor does it require "a full assessment of any identifiable environmental effects". What is involved in a screening process is "only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all". The court should not, therefore, impose too high a burden on planning authorities in what is simply "a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment …". In the light of the decision of the European Court of Justice in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Lnadbouw, Natuurbeheer en Visserij  ECR I-7405 and the Advocate General's opinion in R. (on the application of Mellor) v Secretary of State for Communities and Local Government  Env LR 18 Moore-Bick L.J. said (in paragraph 17 of his judgment) that a likelihood in this context was "something more than a bare possibility … though any serious possibility would suffice".
25. In R. (on the application of Loader) v Secretary of State for Communities and Local Government  EWCA Civ 869, Pill L.J., with whom Toulson and Sullivan L.JJ. agreed, said (in paragraph 31 of his judgment) that there was "ample authority that the conventional Wednesbury approach applies to the court's adjudication of issues such as these". That principle is firmly established in the domestic jurisprudence. For example, in R. (on the application of Evans) v Secretary of State for Communities and Local Government  EWCA Civ 114) Beatson L.J. said (in paragraph 22 of his judgment) that the "assessment of the significance of an impact or impacts on the environment has been described as essentially a fact-finding exercise which requires the exercise of judgment on the issues of "likelihood" and "significance"" (see also paragraph 40 of Laws L.J.'s judgment in Bowen-West v Secretary of State  EWCA Civ 321). In Jones v Mansfield Carnwath L.J. said (at paragraph 61) that because the word "significant" does not lay down a precise legal test but requires the exercise of judgment on planning issues and consistency in the exercise of that judgment in different cases, the function is one for which the courts are ill-equipped."
"66. It is common ground that the analysis in paragraph 20 of the judgment of Moore-Bick LJ in R (Bateman) v South Cambridgeshire District Council  EWCA Civ 157 continues to apply to the screening process under the 2011 Regulations (Mackman v Secretary of State for Communities and Local Government  EWCA Civ 716;  Env LR 6 at paragraph 7). A screening opinion does not involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include environmental factors. Nor does it include a full assessment of any identifiable environmental effects. It includes only a decision, almost inevitably on the basis of less than complete information, as to whether an EIA needs to be undertaken at all. The court should not impose too high a burden on planning authorities in relation to "what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment."
67. The issues of whether there is sufficient information before the planning authority for them to issue a screening opinion and whether a development is likely to have significant environmental effects, are both matters of judgment for the planning authority. Such decisions may only be challenged in the courts on grounds of irrationality or other public law error (R (Jones) v Mansfield District Council  EWCA Civ 1408;  Env L.R. 21 (paragraphs 14-18 and 52–55 and R (Noble Organisation Ltd) v Thanet District Council  ECWA Civ 782;  Env. L.R.8 paragraph 30)."
The site is not located in an Air Quality Management Area (AQMA), although there is an AQMA north of the site in the centre of Hemsworth which has recently been adopted. In such areas air quality is a concern, mostly caused by road traffic, and pollution levels may exceed guidelines set by the government. Policy CS10 states that urban areas are the places where the LDF spatial strategy concentrates most development, so without action air quality in these areas might deteriorate. It is considered important that new development does not worsen air quality. Promoting the use of public transport, walking and cycling as alternatives to the car will help to reduce greenhouse gas emissions and air pollution.
Policy CS10 seeks to minimise the risk of all forms of pollution. Policy D20 requires development proposals to be consistent with the aims and objectives of the Council's Air Quality Action Plan.
Given the scale of the proposed development and its location close to an AQMA, the Council's Scientific Officer has been consulted. In respect of the impact from construction, it is recommended that a construction environmental management plan is adopted and that the developer be a member of the Good Constructors Scheme.
In view of the proximity of the site to the newly adopted AQMA, the Council's Scientific Officer has requested that electric vehicle charging points are provided on each dwelling with dedicated parking and 1 point per 10 dwellings where there are parking courts. As discussed earlier in this report, there are viability issues regarding this development and it is considered that the provision of charging points would not be viable in this instance.
The Council's Highways Section has recommended a condition for agreement of a Travel Plan to encourage the use of alternative modes of transport to the private car. Given that the site is not located within the AQMA together with the relatively small impact the proposal would have on existing air quality given the size of the proposed development, it is considered that lack of charging points wold be insufficient reason for refusal of the scheme."
"Given the scale of the current proposal, which is an allocated housing site within the Local Development Plan, together with the above mentioned development and possible future development within the vicinity of the site, it is considered that in the context of the wider settlement, there would not be likely to be any significant cumulative environmental impacts."
"Beyond this proposal at the application site, there has been new housing of 25 and 14 dwellings constructed on the boundaries of the site to the north/north east respectively.
It is also noted that there is currently a proposal for 24 houses to the southern boundary with the Council which is presently at the consultation stage. The Secretary of State has considered these applications in terms of their size and scale and the context of the local area. The local area is urban – residential with some commercial and given this, together with the size and scale of the development completed/proposed, the Secretary of State considers that while there may be some cumulative impact, this would not be to the extent that it would be likely to result in significant cumulative impact."
"24. …It is important that an assessment is made in the light of what is known and what is reasonably predictable or ascertainable at the time. Although the Dreamland site was earmarked for development, its future remained uncertain. The issue of the compulsory purchase order remained unresolved and no planning application was forthcoming. In those circumstances, it was permissible for the Secretary of State to conclude that there were at that point no cumulative significant environmental effects…."
"There has to be a sensible limit to what a screening decision-maker is expected to do. This view is supported in the cases to which I have referred, notably, for example, in Bateman … Conjecture about future development on other sites that might or might not act with the development in question to produce indirect, secondary or cumulative effects is not in the screening decision-maker's remit. I do not think that the precautionary approach extends to that."
"Potential impacts during the operational phase of the development may occur due to road traffic exhaust emissions associated with vehicles travelling to and from the site. An assessment was therefore undertaken using the West Yorkshire guidance criteria to determine the potential for the development to affect local air quality. This indicated that the development is considered to be classified as Type 2 – Major. The required level of mitigation measures were identified and assuming these are implemented, the residual effect from construction and operational phase activities is predicted to be acceptable for the scale and nature of the development. Dispersion modelling was undertaken in order to quantify pollutant concentrations at the site and to predict air quality impacts as a result of road vehicle exhaust emissions associated with traffic generated by the development. Results were subsequently verified using monitoring results obtained from WMDC.
The dispersion modelling results indicated that pollutant levels across the site were below the relevant AQOs. The location is therefore considered suitable for residential use without the inclusion of mitigation measures to protect future users from poor air quality. Predicted impacts on NO2 and PM10 concentrations as a result of operational phase exhaust emissions were predicted to be negligible at all sensitive receptor locations considered within the vicinity of the site. The overall significance of potential impacts was determined to be not significant, in accordance with the EPUK and IAQM guidance. Based on the assessment results, air quality is not considered a constraint to planning consent for the proposed development."
"49. The relevance of mitigation measures at the screening stage has been addressed in a number of authorities. One of the first was R (Lebus) v South Cambridgeshire District Council  Env LR 366 (relating to a proposed egg production unit for 12,000 free-range chickens). Sullivan J said, at para 45-46:
"45. Whilst each case will no doubt turn on its own particular facts, and whilst it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development, the underlying purpose of the Regulations in implementing the Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures.
46. It is not appropriate for a person charged with making a screening opinion to start from the premise that although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds. The appropriate course in such a case is to require an environmental statement setting out the significant impacts and the measures which it is said will reduce their significance."
50. Of the particular proposal in that case, he said, at para 50, that it must have been obvious that with a proposal of this kind there would need to be a number of "non-standard planning conditions and enforceable obligations under section 106", and that these were precisely the sort of controls which should have been "identified in a publicly-accessible way in an environmental statement prepared under the Regulations":
"it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects?" (Para 51.)
51 Those passages to my mind fairly reflect the balancing considerations which are implicit in the EIA Directive : on the one hand, that there is nothing to rule out consideration of mitigating measures at the screening stage; but, on the other, that the EIA Directive and the Regulations expressly envisage that mitigation measures will where appropriate be included in the environmental statement. Application of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA."
Note 1 At  of this judgment [Back] Note 2 At  of this judgment [Back] Note 3 At  of this judgment [Back] Note 4 At  of this judgment [Back] Note 5 At  of this judgment [Back] Note 6 At  of this judgment [Back] Note 7 At  of this judgment [Back]
Note 1 At  of this judgment [Back]
Note 2 At  of this judgment [Back]
Note 3 At  of this judgment [Back]
Note 4 At  of this judgment [Back]
Note 5 At  of this judgment [Back]
Note 6 At  of this judgment [Back]
Note 7 At  of this judgment [Back]