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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Jedwell, R (on the application of) v Denbighshire County Council & Anor  EWHC 458 (Admin) (10 March 2016)
Cite as:  EWHC 458 (Admin)
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QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
B e f o r e :
| THE QUEEN on the application of
|- and -
DENBIGHSHIRE COUNTY COUNCIL
|- and -
DH & DR JONES
John Hunter (instructed by Denbighshire County Council Legal Services)
for the Defendant
John Hunter (instructed by Aaron and Partners LLP for the Interested Parties
Hearing date: 2 March 2016
Further written submissions: 4-7 March 2016
Crown Copyright ©
Mr Justice Hickinbottom :
The Legal Background
"… in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or approved development".
"The likelihood of significant effects will generally depend upon the scale of the development, and its visual impact, as well as potential noise impacts. EIA is more likely to be required for commercial developments of five or more turbines, or more than 5MW of new generating capacity."
"57. It is apparent, however, that third parties as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary.
58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority's screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.
59. In that regard, effective judicial review, which must be able to cover the legality of the reasons for the contested decision presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request (see Heylens v Union nationale des entraineurs et cadres techniques professionnels du football (Unectef) (2009) CJEC Case 222/86)  ECR 4097 at ).
60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made."
Given the terms of  in Mellor, where a request is made to the relevant authority for reasons, it has the common appellation of "a Mellor request"; and an authority's obligation to provide reasons for a negative screening opinion following such a request is known as "the Mellor duty".
"64. … [T]he determination must be such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention.
65. It cannot, in those circumstances, be ruled out that in the case in the main proceedings the Secretary of State's reasons might be considered sufficient, taking into account, in particular, factors which have already been brought to the attention of interested parties, provided that the latter can ask for and obtain from the competent authorities, subject to judicial review, the necessary supplementary information to fill any gaps in that reasoning.
66. That answer to the second and third questions is therefore that, if a determination of a Member State not to subject a project falling within Annex II to Directive 85/337 to an EIA in accordance with arts 5-10 of that directive states the reasons on which it is based, that determination is sufficiently reasoned where the reasons which it contains, added to factors which have already been brought to the attention of interested parties, and supplemented by any necessary additional information that the competent national administration is required to provide to those interested parties at their request, can enable them to decide whether to appeal against that decision."
"…it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request."
In other words, the decision-maker must make clear why he or she did not consider that the development is likely to have significant effect on the environment (see ).
The Factual Background
"2 no. 50kW wind turbine and control box at field close to Syrior, Llandrillo, Corwen LL21 0AT
The site is less than 1km away from Mynydd Mynyllod which is a designated wildlife site;
The site is approximately 3km away from the Berwyns – Is this far enough away from the statutory designation to not give rise to significant effects: If we issue a negative screening opinion, would you still expect to see ecological surveys to accompany the application?
As I say, this isn't a formal consultation request, but I'll need to issue the opinion before the 15 March, so if you could get back to me by the end of the next week that would be great."
"Whilst not located within the boundaries of any statutory protected designated landscapes, we note that the [Site] lies immediately adjacent to the proposed Scottish Power Renewables wind energy development at Mynydd Mynyllod, and approximately 2.2km from the existing wind farm development at Braich Ddu. Consequently, in order to properly assess the cumulative impact of this wind energy development with others in the locality (either existing or within the planning process), we advise that the applicants undertake a Landscape and Visual Impact Assessment (LVIA) appropriate to the proposal's scale and location."
"Consideration has been given by the local Planning Authority to the relevant selection criteria in schedule 3 to the Regulations, the general guidance contained in EIA Circular 11/99, that any indicative criteria in annex A of the Circular and in the case of the schedule 2 development, whether it is a sensitive area under regulation 2(1)."
Section C purportedly gave the reasons for the Council's decision, as follows:
"Having regard to the guidance given in the regulations and in the Circular, the proposed development would not give rise to significant effects in this instance."
"It is the opinion of the Local Planning Authority that the erection of 2 no. 46 metre high 50KW turbines in this location would have an adverse impact on the setting of protected landscape areas… and have a detrimental impact on the open character and visual quality of Mynydd Mynyllod, a non-statutory landscape of county/regional importance, resulting in adverse visual effects when viewed from parts of north Berwyn, public access and public rights of way in the area. It is also the opinion of the Local Planning Authority that insufficient information has been provided to demonstrate the proposal will not give rise to adverse cumulative effects when considered in combination with operational and consented windfarm development, and in particular the Braich Ddu windfarm. In conclusion the harmful landscape impacts are considered to significantly outweigh the benefits of increased renewable energy generation…"
In concluding that the harmful landscape impacts of the proposal outweighed its planning benefits, the officers thus identified two elements, namely (i) the adverse impact of the proposal on the openness and visual quality of Mynydd Mynyllod, and (ii) the cumulative effect of the proposal when considered with other windfarm developments, particularly that at Braich Ddu.
"I acknowledge your letter of 22 January.
I do not agree with your assessment of the approach taken when issuing the screening opinion on the proposed wind turbine development at Syrior.
The assessment was made having regard to the advice given in the up to date EIA Regulations and associated guidance. Just because it transpired that the Planning Authority recommends refusal on a subsequent application doesn't mean that it should have requested that the application be supported by a formal Environmental Statement under the Regs.
I note the contents of your last paragraph but I am satisfied that the possible Mynydd Mynyllod (NIP scheme) should not have been taken into account in the screening opinion on Syrior."
"The Council's screening opinion does not inform the reader as to how the Council reached their negative screening opinion."
"…any further reasoning for the screening opinion that was made. By this we mean contemporaneous reasons, and when you respond please could you confirm that what you send is just that."
"38. This screening opinion gave no apparent consideration to whether EIA would be required on the basis of the development's cumulative impact with other development as it is required to do (in accordance with paragraph 46 of Circular 11/99 and European and domestic authority…. In particular, no regard was had to the potential for cumulative environmental effects with the existing windfarm at Braich Ddu windfarm and the proposed Mynydd Mynyllod windfarm.
40. Both the CJEU and domestic courts have been astute to prevent projects from avoiding EIA by looking at them in isolation rather than in combination with other proposed schemes…".
The letter was clear, beyond doubt, that the Claimant's concern and the alleged unlawfulness lay in the Council's failure to give proper consideration to the cumulative effects of the proposed development with the other two identified schemes.
"There is no evidence, or even an assertion by [the Council], that the officer gave actual consideration to whether the cumulative effects of the proposed turbines with other windfarms resulted in significant effects."
"11. My analysis of the Screening Request included an assessment of the impact of the proposal on relevant environmental receptors, but in particular on the statutory designation, protected species and habitats, visual and landscape impact, and the impact on residential and public amenity.
12. Furthermore, given the proximity of the site to an existing windfarm (Braich Ddu windfarm, approximately 2.2km away from the site within the administrative boundary of Gwynedd County Council), and other windfarm developments within the wider locality (specifically Wern Ddu windfarm in Gwyddelwern and the consented windfarm developments within the southern section of Clocaenog Forest Strategic Search Area), the cumulative effects of the proposal in combination with other consented and operational wind energy schemes were also taken into consideration.
13. However, whilst there is also a proposal for a nationally significant windfarm immediately adjacent to the Syrior site (the proposed Mynydd Mynyllod windfarm), although I paid some regard to the proposal, I did not consider it appropriate to apportion significant weight to the cumulative impact of the Syrior proposal in combination with the Mynydd Mynyllod windfarm when assessing the potential environmental effects, given that an application for development consent had yet to be submitted to the Planning Inspectorate. I was therefore of the opinion that the Mynydd Mynyllod windfarm proposal was still in the early pre-planning stages could not reasonably to be 'in-planning'.
14. Having taken into account the comments of CCW, the 1999 Regulations and the guidance in [the 1999 Circular], I concluded that whilst this development may result in some environmental effects, it would be unlikely to give rise to significant effects on the environment in this instance, due to its nature, size and location. I reached this view, having taken into account the likely impact of the proposal individually and in combination with the other windfarm schemes that I have mentioned previously in this witness statement.
15. I therefore considered it appropriate to issue a negative Screening Opinion on 15 March 2012…". (emphasis in the original).
She confirmed (in paragraph 16) that there was no change in circumstances between the date of that opinion and the grant of planning permission.
i) Was the screening opinion adequately reasoned? No. In Lewison LJ's view, the screening opinion was simply a statement of a conclusion, without any reasoning at all, and the subsequent correspondence did nothing to repair that deficiency (see -).
ii) If not, did the Appellant make a valid request for the reasons why the Council issued a negative screening opinion? Yes. Lewison LJ considered that the Claimant's solicitors' letter of 1 May 2013 – which asked for "contemporaneous reasoning" – was a Mellor request (see ).
iii) Was the Council's response (leaving out of account Mrs Shaw's witness statement) enough to satisfy whatever legal duty it had to give reasons? No. The Council responded to requests and chasers by saying that it had nothing to add by way of reasoning. As at the relevant time (i.e. the date the proceedings were issued), the Council was in breach of its legal duty to give reasons following a valid Mellor request (see ).
iv) If it was not, was Mrs Shaw's witness statement too late to rescue the position? Yes, and no. Lewison LJ dealt with this issue at -. He, said that, although the Council could have more than one attempt at giving adequate reasons following a Mellor request, it must give reasons within a reasonable time, and in any event before proceedings for breach are issued. Therefore, Mrs Shaw's evidence (which was not served until after this claim was issued and served) was not relevant to the question of breach: the Council was, in any event, in breach of the Mellor duty to give reasons within a reasonable time of a request. However, Mrs Shaw's evidence as to her reasons for the negative screening opinion was still relevant and admissible in relation to the question of relief for the breach – always, of course, a matter of discretion in this court. He considered it was relevant, particularly, to the important issue of whether the court should exercise its discretion to quash the planning permission.
I pause there to mark that, in relation to answers to (i), (ii), (iii) and (iv), Lewison LJ agreed with Foskett J's conclusions.
v) If Mrs Shaw's evidence was not too late, was the judge wrong to permit the Appellant to cross-examine Mrs Shaw with a view to showing that the reasons given in her witness statement were an ex post facto justification of the decision? Yes. Here, Lewison LJ and Foskett J parted company. Foskett J had refused an application to cross-examine Mrs Shaw. Lewison LJ (at -) held that he was wrong to do so. Having referred, with approval, to the comments of Stanley Burnton LJ in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 2115 ("Bancoult") at , to the effect that cross-examination in public law cases should be permitted "if cross-examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly", Lewison LJ continued (at ):"In our case the question of fact was whether Mrs Shaw's evidence was ex post facto justification of the decision to issue the negative screening opinion, or was an account of her actual reasoning process at the time. That was not an issue for the local planning authority to determine: it was a question for the court. The judge did not ask himself the critical question: what did justice require?"He thus considered that this was:"…one of those admittedly rare cases in which cross-examination was necessary in order for justice to be done and seen to be done…. In my judgment the judge approached the question of cross-examination in a way that was wrong in principle. Accordingly, I consider the judge's order cannot stand."
"(i) How did it come about that Mrs Shaw's analysis left no trace on the Council's file?
(ii) Given that the screening opinion was issued on the same day as Mrs Shaw received CCW's comments, when was this analysis carried out and how long did it take?
(iii) Why was it that in response to the pre-action protocol letter the Council was unable to provide [the Claimant's solicitors] with the details that Mrs Shaw spoke to in her witness statement?
(iv) How was it that, a year and a half after the screening opinion, Mrs Shaw was able to remember in such detail what she said was her reasoning process at the time?
(v) How did her evidence to the court square with the officers' recommendations to the Planning Committee, with the concerns that they expressed, and with their view in October 2012 that insufficient information had been provided to enable them properly to evaluate the environmental impact of the proposal?
(vi) Was there not a real possibility that, rather than remembering what she actually did, Mrs Shaw was reconstructing what she would or should have done?"
Relief: The Court's Discretion
i) the applicant had in practice been able to enjoy the rights conferred by the relevant European legislation, and
ii) there was no substantial prejudice.
"I was referred to a number of cases as to the correct approach as to relief in public law claims. The conventional domestic position is that, where an administrative decision has been found to be unlawful, although usually the relief will include an order quashing the decision (see, e.g., Berkeley v Secretary of State for the Environment  2 AC 603 at page 616F per Lord Hoffman), the court may exercise its discretion not to do so. In exercising that discretion, the court will take all the circumstances of a particular case into account; but it may be persuaded not to quash a decision because the breach of obligation was immaterial, i.e. the administrative decision would undoubtedly have been the same, even if the breach had not occurred. That approach has recently been confirmed as applying equally to cases in which the relevant obligation derives from European law (Walton v The Scottish Ministers  UKSC 44;  Env LR 16 at  per Lord Carnwath and at  per Lord Hope; Burridge v Breckland District Council  EWCA Civ 228 at  per Davis LJ and at  per Warren J, Pill LJ apparently dissenting on this point; and R (Catt) v Brighton & Hove City Council  EWHC 977 (Admin) at  per Lindblom J). As to approach, I consider myself bound by those authorities and, to the extent that they differ, I should not follow R (Bateman) v South Cambridgeshire District Council  EWCA Civ 157 or the minority in Burridge (although I am sceptical as to the extent those cases in fact sought fundamentally to alter the conventional test). Bound as I am, I should emphasise that I would have held that there is discretion to withhold relief even had I been left to my own devices. This court deals with matters in the real world, and should be slow to grant relief where the challenged decision would inevitably have been the same but for the breach of obligation, neither the claimant nor anyone else has suffered any real prejudice, and there is no other good ground for relief being granted."
"54. Having found a legal defect in the procedure leading to the grant of permission, it is necessary to consider the consequences in terms of any remedy. Following the decision in [Walton], it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice…
[Lord Carnwath then referred to Altrip, and continued as follows.]
58. Allowing for the differences in the issue raised by the national law in that case (including the issue of burden of proof), I find nothing in this passage [from Altrip] inconsistent with the approach of this court in the Walton case. It leaves it open to the court to take the view, by relying 'on the evidence provided by the developer or the competent authorities and, more generally, on the case file documents submitted to the court" that the contested decision 'would not have been different without the procedural defect invoked by the applicant'. In making that assessment it should take account of 'the seriousness of the defect invoked' and the extent to which it ahs deprived the public concerned of the guarantees designed to allow access to information and participation in the decision-making process in accordance with the objectives of the EIA Directive."
"The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of regulation 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation."
In other words, whilst many breaches of public law duty will lead to a presumption that the resultant decision should be quashed – subject to the decision-maker showing the decision would inevitably have been the same and, now, section 31(3C) of the Senior Courts Act 1981 – in these circumstances, the presumption will or may be different. That analysis was approved on appeal ( EWCA Civ 1860 at  per Simon Brown LJ).
Mrs Shaw's Evidence
i) A local planning authority is required to give reasons for a negative screening opinion within a reasonable time of a request, i.e. it bears the Mellor duty. Those must be the reasons in its mind at the time of the decision, and not an ex post facto justification. If it fails to give reasons within a reasonable time of request, it will be in breach of duty. Given the possibility of a request coming in perhaps months or even years after the EIA screening decision is taken, authorities will no doubt wish generally to maintain a note of the decision-maker's reasons for any negative screening decision, so that those reasons can be sent out if and when any request is made. Mrs Shaw said she did not keep her reasons only because she was unaware of the Council's Mellor duty.
ii) Once proceedings are issued, whilst it will be too late for an authority to avoid a breach by providing reasons, if the authority thereafter provides reasons – and the court is persuaded that they were indeed the reasons in the Council's mind at the time of the decision – the court is likely to be slow to quash the planning permission. That is because it is unlikely that interested parties will have been denied any right or opportunity to participate in the planning process given by European law, or that anyone will have been materially prejudiced by the delay in providing reasons. In these circumstances, the court may, however, penalise the authority in costs.
iii) If no contemporaneous reasons are forthcoming (including, of course, a situation where the court rejects the submission that reasons put forward were contemporaneous), then in accordance with usual public law principles, the planning permission should be quashed unless the authority can show that the decision would inevitably have been the same if the breach had not occurred; or, if remitted, the decision would now be the same. The burden is upon the authority, and whether it has discharged it will be dependent upon the evidence, particularly the evidence they have adduced in those issues. The court will be wary of the possibility that, in producing such evidence, the authority may be under some pressure, conscious or unconscious, to maintain the planning permission decision.