Smith, R (On The Application Of) v Secretary Of State For Environment, Transport & Regions & Ors [2001] EWHC Admin 1170 (19th December, 2001)

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England and Wales High Court (Administrative Court) Decisions

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Cite as: [2001] EWHC Admin 1170

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Smith, R (on the application of) v Secretary of State for the Environment, Transport and the Regions & Ors [2001] EWHC Admin 1170 (19th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1170
		Case No: CO/1684/01

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

19 December 2001

B e f o r e :

THE HONOURABLE MR JUSTICE SILBER
____________________

	THE QUEEN ON THE APPLICATION OF MAUREEN SMITH	Claimant
	- and -
	SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS (1) CITY OF BRADFORD DISTRICT COUNCIL(2) HUMBERSIDE WASTEWISE WASTE MANAGEMENT SERVICES LIMITED(3)	Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Lord Kingsland Q.C. (instructed by Patwa, Solicitors) for the Claimant
Mr. Timothy Corner (instructed by the Treasury Solicitor) for the First Defendant, the Secretary of State for the Environment, Transport and the Regions
The Second Defendant was not represented
Mr. John Barrett (instructed by Walker Morris) for the Third Defendant, Humberside Wastewise Waste Management Services Limited now called Integrated Waste Management Limited
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Silber:

Introduction

In this appeal, brought under section 288 of the Town and Country Planning Act, 1990 (“the 1990 Act”), Maureen Smith (“the Claimant”) seeks to challenge the decision of the first defendant, the Secretary of State for Transport, Environment and the Regions (“the Secretary of State”), who by his Inspector in a decision letter dated 14 March 2001 (“the Decision Letter”) granted planning permission in respect of a proposed development at Buck Park Quarry, Whalley Lane, Denholme (“Buck Farm Quarry”).

The proposed development extends the time permitted under a planning permission (90/9/02224) (“the 1992 permission”) granted on 26 March 1992 for the extraction of stone from Buck Park Quarry and it permits an increase in the depth of extraction at the quarry. The aim was to facilitate the use of the quarry for the landfill disposal of up to 250,000 tonnes per annum of controlled waste for a period of ten years. Planning permission had been granted by the Secretary of State for a change in the use of the quarry to landfill uses as well as for associated access improvements and restoration of the site to agricultural use and woodland. The 1992 permission was granted for an extension to existing surface mineral workings at the quarry with phased restoration.

The application for the proposed development was made by Humberside Wastewise Waste Management Services Limited, now Integrated Waste Management Limited (“IWM”), 90% of which is owned by the local authorities of Hull, East Riding, North Lincolnshire and North East Lincolnshire. IWM has supported the Secretary of State in opposing the appeal of the claimant. The local authority, City of Bradford Metropolitan District Council, (“the LPA”), the second defendant to this appeal, has neither been represented nor adduced any evidence in this appeal.

The Background

The Claimant has lived in the village of Denholme for many years and she lives less than a mile from the proposed development. She contends that she is directly affected by the existing quarrying operation at the site and is likely to be substantially affected by the proposed development if the 2001 decision is permitted to stand. The village of Denholme is sited close to two landfill sites, at Manywells, which is one mile away, and Sugden End, which is two miles away. The Claimant’s concern is that the grant of planning permission to extend time, to increase the depth of workings at Buck Park Quarry and to permit the site to be used for the landfill disposal of controlled waste might generate considerable traffic, noise and other nuisance damage to her amenities and those of other residents. The Claimant objected to the proposed development and attended the public inquiry before the Inspector which sat for ten days in January 2001 and which led to the 2001 decision.

Buck Park Quarry lies approximately 1km north east of the village of Denholme, 1km south of Cullingworth and 10km west of the town of Bradford. The quarry lies in the Green Belt. It is an active sandstone quarry, in use for many years, producing crushed stone aggregate and flag stones. There is acknowledged by the claimant to be a need for restoration works to the site, whether as to the existing extraction uses or for the uses the subject of the planning permission granted. There are some sixteen properties within 250 metres of the site.

There are views of the quarry from Whalley Lane which runs along the southern side of the quarry, from the A629 road which runs from the southern to the northern side of the quarry and Buck Park Farm and Lane Top, Ogden Lane, the closest properties to the site in the village. The quarry can also be seen from Cullingworth which is 1.5 miles from the quarry, from Harecroft which is two miles away and from Hewenden Reservoir some 100 yards from the quarry. The claimant is concerned about the consequences of the Decision Letter in respect of issues of visual amenity, landscape and restoration.

The First Planning Application

The planning application (98/01089/FUL), (“the first planning application”) was made on 9 April 1998 and it sought to achieve three objectives:

(1) to vary conditions 2 and 24 of the 1992 permission,

(2) to landfill the quarry with controlled waste (that is, domestic, commercial and industrial waste),

(3) to introduce access improvements to the site.

Condition 2 of the 1992 permission gave permission for quarry extraction for a period of ten years from 1992. That permission would therefore have expired in 2002. The first planning application sought an extension of time so as to permit quarry extraction until 2006.

Condition 24 of the 1992 permission limited the depth of mineral extraction to 230 metres above ordinance datum (“AOD”). The first planning application sought an extra eight metres in the depth of permitted extraction to 222 metres AOD. The extra depth sought was said to assist site-engineering works to provide for the proposed landfill use.

The proposed landfill use would allow the site to be used for the deposit of controlled waste for a ten year period based on an infill rate of between 200,000 and 250,000 tonnes per annum. This use would generate some 98 additional Heavy Goods Vehicle movements per day to and from the site. The operation would require a Waste Management Licence to be issued by the Environment Agency.

The proposed development involved the provision of on-site facilities, which included a new access road to Whalley Lane from the site, realignment of Whalley Lane from the new access road to the A629, a new junction with the A629 and the closure of the old access road to HGVs. It also involved additional and replacement planning around the site, methods for extracting and controlling landfill gases and leachate; and proposed agricultural restoration and after care for five years.

The first planning application was accompanied, among other things, by both a supporting statement and an Environmental Statement and appendices dated 18 March 1998 (“the first ES”). The Environmental Statement was required by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations, 1988, as amended (“the 1988 regulations”), which were made pursuant to the Council Directive 85/337/EEC (“the Directive”). This appeal raises issues concerning the meaning and effect of the 1988 regulations.

The first planning application was the subject of consultation and it was discussed at two Denholme Neighbourhood Forum meetings in June 1998 and January 1999. There were objections from the local community. The grounds of objection included increased traffic impacts, nuisance, pollution, noise, smell and general environmental damage. A summary of the scope of local objections was contained in a report from Officers of the LPA to its Committee of 10 May 1999 (section 6).

In spite of those objections, the officers of the LPA recommended approval of the first planning application subject to conditions and entry into a section 106 agreement submitted by IWM. The officer’s report noted, among other things, that there were no objections from statutory consultees on grounds of environmental protection, landscape, design and highways issues and in addition that there was no objection from the Environment Agency.

The officers of the LPA were of the view that the proposed development was acceptable in policy terms and was therefore in accordance with the development plan. They also concluded that the impact on visual amenity would not be adverse because of the proposals to replace and provide additional planting and the eventual improvement which would follow from the restored landfill and that while the proposed mitigation measures would ensure there would be no adverse impact from dust, odours and pest nuisance, which would in any event be covered by any Waste Management Licence. A further officer’s report dated 8 July 1999, considered further concerns and objections that had been raised at Planning Sub-Committee on 10 May 1999. That report confirmed the officer’s recommendation for approval of the proposed development.

The first planning application was, however, refused by the LPA by notice dated 23 July 1999, on the grounds that:

“The proposal will be contrary to GP2 (I), (II), (IV) and policy W1 (I) of the approved Unitary Development Plan, particularly by reason of the smell which would be generated, the visual impact on the surrounding environment and to the detriment of pedestrian safety along the A629 through Denholme Village”.

Notice of appeal against that decision was issued pursuant to section 78 of the Town and Country Planning Act 1990 and the appeal was considered at the public inquiry held in January 2001 to which I have already referred. The present application of the claimant arises out of the determination of that appeal against the refusal of the first planning application and, in particular, whether the Inspector was entitled to take into account environmental material not contained in the first environmental statement and whether he could permit the LPA to determine what action had to be taken in respect of landscaping and dust in the way that he did. To understand these issues, it is necessary for me now to outline some further aspects of the planning history.

The Second Planning Application:

The first ES was, according to the claimant but not to the Secretary of State, regarded by the LPA as defective because it contained inadequate detail on landscaping and noise mitigation measures. More specifically, according to the claimant but not to the Secretary of State, the first ES did not comply with the requirements of the Directive and the 1988 Regulations because it failed to include that part of “specified information” required by Paragraph 2(d) of Schedule 3, of the 1998 Regulations, which states that:

“where significant adverse effects are identified … … … .a description of the measures envisaged [is required] in order to avoid reduce or remedy those effects”.

A second planning application (“the second planning application”) was lodged in February 2000, which contained revised material on landscaping and noise and an Environmental Statement (“the second ES”). In paragraph 5, the second ES recorded that:

“This revised landscape matter incorporates the issues raised by Bradford City Council at a meeting on 9 January 2000 and a subsequent meeting … to address concerns relating to landscape and visual matters”.

The second planning application was like its predecessor refused by the LPA. It is only the refusal with respect to the first planning application, which was appealed, and the rejection of the second planning application has not been the subject of any challenge. The first ES that supported the first application was, according to the claimant, defective but the Secretary of State and IWM dispute this. The second ES accompanying the second planning application which, according to the claimant cured what the claimant (but not the Secretary of State or IWM) considered to be a deficiency of the first ES. The second ES was available for consideration by the Inspector determining the appeal against the refusal of the first planning application and it could also have been commented upon by the public at the Inquiry. Before setting out the criticisms of the decision letter, it is appropriate now to specify the issues raised on this appeal

The Issues

The claimant seeks to have the decision quashed because of errors made by the Inspector in the Decision Letter and the issues raised on this appeal are: -

(i) Whether the procedure followed by the Inspector on the appeal failed to comply with Regulation 21 of the 1988 Regulations, as he incorporated a part of the second ES as part of the environmental information before the Inquiry without invoking Regulation 21 (“the Regulation 21 Issue”);

(ii) Whether Condition 5 of the Inspector’s Decision Letter was defective as it failed to require the proposed development to comply with the proposed tree planting and grassland seeding schemes and mitigation measures set out in the Landscape Proposals contained in the Second ES (“the Landscaping Issue”);

(iii) Whether Condition 9 of the Inspector’s decision was defective as in the Letter of 14 March, 2001, failed to require the proposed development to comply with the proposed dust mitigation measures set out in the second ES (“the Dust Issue”);

(iv) Whether if the claimant succeeds on the Regulation 21 issue, on the landscaping issue or on the dust issue, the appropriate remedy is that the 2001 decision should be quashed (“the Quashing Issue”).

Lord Kingsland has pointed out correctly in my view that the Regulations are based on the Directive and that I should bear in mind, as I will, the comments of Lord Hoffman (with whom the remainder of their Lordships agreed) in R v. North Yorkshire C.C., ex p. Brown and Another [1999] 1 All ER 969) where he explained at page 971G that: -

“… This directive was adopted to protect the environment throughout the E.U. by requiring member states to ensure that planning decisions likely to have a significant effect were taken only after a proper assessment of what those effects were likely to be. It requires that before the grant of development consent for specified kinds of project, Member States should ensure that an environmental impact assessment is undertaken”.

I now turn to summarise the parts of the decision letter relevant to and explanatory of these issues.

The Inspector’s Decision:

In Paragraph 51 of his Decision Letter, the Inspector stated that:

“I have concluded above that the development as whole would be appropriate in the Green Belt. With the imposition of suitable planning conditions and giving weight to the provisions of the s. 106 obligation and other legal safeguards, I am satisfied that the site can be worked and filled to high environmental standards and can be restored to fit in with the local landscape”.

In due course, I will have to consider the planning conditions, the terms of the Section 106 obligation and the other legal safeguards. The Inspector had already explained in Paragraph 2 of his Decision Letter in a passage to which the claimant attaches great significance on the Regulation 21 issue that he took into consideration the second ES as he said that:

“An Environmental Statement, produced in accordance with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (as amended), accompanied the application. I have taken the Statement and later environmental information into account in arriving at my decision along with the comments from statutory consultees and representations from interested persons and the evidence presented at the inquiry. (An amended planning application was made by the appellants in February 2000 and refused permission by the Council in July of that year. That decision has not been appealed against, but the environmental information submitted with that application including measures for the mitigation of impacts, has been subsumed into the evidence before me)”.

As I will explain, the claimant objects in the Regulation 21 issue to the fact that a small part of the information in the second ES was, according to the Inspector, “subsumed” into the evidence by the Inspector. The Inspector summarised the relevant policies of the City of Bradford Unitary Development Plan (UDP) and the relevant national policies in Paragraph 7 of the Decision Letter as being:

7. The main issues are derived from the criteria in the relevant polices of the City of Bradford Unitary Development Plan (the UDP), which is the statutory development plan for the area; and from the application of national policy. Those policies include:

A presumption against development in the Green Belt not identified in Policy EN1 or described as appropriate in Planning Policy Guidance Note 2 (PPG2), unless justified by very special circumstances;

A desire to protect the visual amenities of the Green Belt (as set down in PPG2 and locally for landfill and extensions to mineral sites in Policies W2 and NR2), the visual character of special landscape areas (as defined by Policy: EN14); and the setting of listed buildings (as indicated by Policy EN21 and PPG15);

The prevention of water and dust pollution or other nuisance as specifically required in Policies W2 and NR2, backed by the guidance in PPGs 10 and 23 (including herein also the potential harm from odours, flies and bird strike – and the latter also being the subject of a specific policy, TP17, which seeks to prevent such hazards affecting the movement of aircraft).

As the visual impact of the proposed development has given rise to the claimant’s objections in the landscaping issue, it is appropriate to record how the Inspector dealt with them. In Paragraphs 13 – 17 of his Decision Letter, he explains with emphasis in italics added that:

The visual impact of the development

13. It is common ground that attempts to mitigate the visual impact of the present workings have not been an unqualified success. Although the high bund alongside Whalley Lane screens the quarry, tree planing on it has not taken due, I agree, to inadequate management (although not by the appellant company). This can be rectified – and indeed forms part of the current application. Intermittent views of the quarry workings from the north and east (against a backdrop of the Special Landscape Area) also reveal the lack of management of spoil and machinery from a visual impact perspective. It is little wonder that there is scepticism amongst local people about whether the larger extended development would do any better.

14. The phasing and restoration proposals have however been carefully designed, both to screen most of the workings during the extraction and landfill process and to create a land form appropriate to the grazed and wooded moorland fringe slopes of the area…. I believe therefore that the character of the local landscape would be sustained and that the end result would be attractive… Those locations are firstly, along Whalley Lane and in views towards the southern site boundary from Denholme Edge; and secondly, from the end of Hewenden Reservoir and its eastern slopes.

15. In the first case, although for relatively short periods the top of the landfill and/or noise attenuation mounds would be seen during the operational and surcharge phases, set against the broader sweep of the landscape beyond or in passing down Whalley Lane its impact would be slight. In the second example, although there would for short periods be views into the landfall area that would be less pleasant than looking at a stone extraction face, that would be a receding and partially screened experience in the middle distance, again set within a strong land form that can absorb it. After restoration, the landform and its associated woodland planting would, I conclude, be seen as an integral part of the local landscape.

16. At Buck Park Farm (a listed building), the existing screening bund would have, behind it, an admittedly high but temporary additional earthwork and (possibly) a stone wall both acting as noise attenuation barrier. I conclude below in respect of noise that I see no need for a permanent wall (which could be oppressive immediately above the farmhouse on the skyline). The profile of the temporary bund would slope steeply away from viewpoints on Whalley Lane and be beyond the present high bund at the back of the farmhouse. Subject to noise attenuation being achieved only by temporary earthworks, I conclude that the setting of the farmhouse would not be changed by the development.

17. The site design and management regime that can be exercised, through landscaping and aftercare planning conditions, through the legal agreements submitted and through the Integrated Pollution Control and Prevention and Control (IPPC) permit under the jurisdiction of the Environment Agency is extensive. I therefore have no reason to doubt that the appellant company is capable of ensuring that the visual impact of the development on the Green Belt, during and after development, would be acceptable.

Turning to the complaint raised on this appeal on the dust issue, the Inspector’s approach to pollution other than from water, gas, noise and traffic from the proposed development was set out in Paragraph 32 of the Decision Letter, which states that:

“Finally in this issue, I turn to other potential pollutants: dust, odour and vermin. I agree with the appellant that the latter two are more properly maters for site management and would be controlled on day-to-day basis through the operation of an IPPC permit using the best available technique. Although I do not underestimate the concerns of residents after their well-documented local experience at Manywells, such techniques are proven to be effective when properly and speedily applied on a well-run site. I do however accept that the proximity of Buck Park Farm to potential dust generating activities is a material land use consideration that deserves attention at this stage. I consider nonetheless that any potential harm can be overcome by requiring a dust suppression scheme to be agreed and implemented as a planning condition”.

The Inspector in granting planning permission imposed conditions, which I will recite when I consider the landscaping and the dust issues. The claimant contends that the LPA was given too wide a discretion by the Inspector in the Decision Letter on the treatment of dust and landscaping. The landscaping and dust issues are concerned with the width of these discretions. I will return to analyse the discretion contained in conditions 5 and 6 of the Decision Letter when I consider these issues.

It is common ground that the first planning application was an application to which the 1988 regulations apply and it is now necessary to refer to those regulations, which are relevant to this appeal.

The Statutory Background

The Directive provides in Regulation 4(2) of the 1988 regulations that:

“The local planning authority … shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration [and state their decision that they have done so]”.

According to Regulation 2(1), “environmental information” means:

… such a statement as is described in Sched. 3.

Schedule 3 describes an “environmental statement” as comprising with emphasis added:

1. …a document or series of documents providing, for the purposed of assessing the likely impact upon the environment of the development proposed to be carried out, the information specified in para. 2 (referred to in this Schedule as ‘the specified information’);

2. The specified information is –

(a) a description of the development proposed, comprising information about the site and design and size or scale of the development;

(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;

(c) a description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference o its possible impact on –

human beings; flora; fauna; soil; water; air; climate; the landscape; the inter-action between any of the foregoing; material assets the cultural heritage;

(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects; and

(e) …

The Regulation 21 Issue

Lord Kingsland QC for the claimant contends first that the first ES was defective but that it was remedied by the second ES, but second that the Inspector made an error by wrongly taking into account the second ES when considering the first planning application without first invoking Regulation 21. He submits that the Inspector did not consider Regulation 21, let alone comply with it, as in the Inspector’s words quoted in paragraph 23 above, in the 2001 decision, he “subsumed” the second ES submitted with the second planning application “into the evidence before me” on the appeal on the first application. The Secretary of State and IWM disagree saying that the first ES was not defective and they submit that in the circumstances there was no need for the Inspector to have recourse to Regulation 21. It is convenient in this judgment to first assume that the first ES was inadequate and then on that assumption, to consider whether the Inspector was obliged to invoke Regulation 21 with the result that his decision to “subsume” the material in one part of the second ES into his decision letter was a fatal flaw. After I have dealt with that issue and also some similar points raised by Lord Kingsland for the first time in his reply, I will then return to consider whether the first ES was defective. So I now turn to consider whether the Inspector should have invoked Regulation 21 and that entails examining the circumstances in which Regulation 21 has to be or can be invoked by an Inspector, if he wishes to rely on information adduced by an applicant which is not in his planning application or in his accompanying ES.

The relevant part of Regulation 21 provides that:

21. (1) The local planning authority or the Secretary of State or an inspector, when dealing with an application or appeal in relation to which an environmental statement has been provided, may in writing require the applicant or appellant to provide such further information as may be specified concerning any matter which is required to be, or may be, dealt with in the statement; and where in the opinion of the authority or the Secretary of State or the inspector –

(a) the applicant or appellant could (having regard in particular to current knowledge and methods of assessment) provide further information about any matter mentioned in paragraph 3 of Schedule 3; and

(b) that further information is reasonably required to give proper consideration to the likely environmental effects of the proposed development,

they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that further information.

[(2) Paragraph (3) to (9) shall apply in relation to further information required of an applicant or appellant after those paragraphs come into force except in so far as such further information is required to be provided for the purposes of a local inquiry held under the Act and the request for such further information states that it is to be provided for such purposes].

(3) The recipient of the further information shall publish in a local newspaper circulating in the locality in which the land is situated (hereinafter referred to as “the locality”) a notice stating –

(a) the name of the applicant for planning permission or the appellant (as the case may be) and the name and address of the Local Planning Authority;

(b) the date on which the application was made and, if it be the case, that it has been referred to the Secretary of State for determination or is the subject of an appeal to him;

(c) the address or location and the nature of the proposed development;

(d) that further information is available in relation to an Environmental Statement which has already been provided;

(e) that a copy of the further information may be inspected by members of the public at all reasonable hours;

(f) an address in the locality at which the further information may be inspected and the latest date on which it will be available for inspection (being a date no less than 20 days later than the date on which the notice is published);

(g) an address in the locality (whether or not the same as that given pursuant to sub-paragraph (f)) at which copies of the further information may be obtained;

(h) that copies may be obtained there so long as stocks last;

(i) if a charge is to be made for a copy, the amount of the charge; and

(j) that any person wishing to make representations about the further information should make them in writing, before the date specified in accordance with sub-paragraph (f), to the Local Planning Authority, the Secretary of State or the Inspector (as the case may be).

(4) The recipient of the further information shall send a copy of it to each person to whom the Environmental Statement to which it relates was sent.

(5) Where the recipient of the further information is a Local Planning Authority they shall –

(a) take steps to secure that a copy of the further information is placed on Part I of the register with the application and the Environmental Statement; and

(b) send to the Secretary of State three copies of the further information.

(6) The recipient of the further information may by notice in writing require the applicant or appellant to provide such number of copies of the further information as is specified in the notice (being the number required for the purposes of paragraph (4) or (5)).

(7) Where further information is required to be provided, the Local Planning Authority, the Secretary of State or the Inspector, as the case may be, shall suspend determination of the application or appeal; and shall not determine it before the expiry of 14 days after the date on which the further information was sent to all persons to whom the Environmental Statement was sent or the expiry of 21 days after the date that notice of it was published in a local newspaper, whichever is the later.

(8) The applicant or appellant who provides further information in accordance with paragraph (1) shall ensure that a reasonable number of copies of the information is available at the address named in the notice published pursuant to paragraph (3) as the address at which such copies may be obtained.

(9) A reasonable charge reflecting printing and distribution costs may be made to a member of the public for a copy of the further information made available in accordance with paragraph (8) and for any copy, in excess of one, of the whole or part of the further information supplied to a person pursuant to paragraph (4).

(10) The Local Planning Authority or the Secretary of State or an Inspector may in writing require an applicant or appellant to produce such evidence as they may reasonably call for to verify any information in his Environmental Statement.

In support of his contention that the Inspector’s decision to “subsume” the second ES into his decision without invoking Regulation 21 is a serious error, Lord Kingsland contends that Regulation 21 sets out a regime by which further information may be adduced and that this regime significantly specifically protects the interests of other interested parties, who have rights conferred on them by Regulation 21 in respect of any information supplied under Regulation 21. Lord Kingsland points out that those significant safeguards enable other interested parties to comment on the further information supplied under Regulation 21. This is clearly shown, he contends, as Regulation 21 specifically provides that after information is supplied pursuant to it, the Inspector is obliged to publish it in a local newspaper circulating in the locality in which the land is situated, a notice relating to the information (sub-regulation 3), which among other things sets out the way in which it can be inspected by members of the public. It is also necessary for the recipient of the further information to send a copy of it to each person to whom the ES was sent (sub-regulation 4). In addition, the determination of the application by the Inspector is suspended pending receipt and circulation of he further information (sub-regulation 7). Lord Kingsland submits that these provisions in Regulation 21 constitute important safeguards to the claimant as they ensure proper publicity for additional environmental information of the kind set out in the second ES, which the Inspector in his Decision Letter “subsumed” into his decision.

Was the Inspector entitled to subsume a part of the Second ES into his decision letter without first invoking Regulation 21?

On the assumption that the first ES was defective, Lord Kingsland’s case rests upon showing that the only proper way in which the additional information in the second ES could have been used by the Inspector in determining the appeal on the first application was by invoking Regulation 21 as, if this information could legitimately have been relied on by the Inspector without using Regulation 21, then the claimants cannot contend that the Inspector erred when he “subsumed” it into the evidence. So it now becomes necessary to analyse the circumstances in which Regulation 21 can be or has to be used and, in particular, whether the Inspector was entitled to act as he did in relation to the matters in the second ES which he “subsumed” into his decision.

The operative and triggering part of Regulation 21 is set out in sub-regulation (1), which itself contains two separate provisions. The first part is facultative and with italics added for emphasis, it contains a power by which an Inspector “when dealing with .. an appeal in relation to which an environmental statement has been provided may in writing require the .. appellant to provide such further information as may be specified concerning any matter which is required to be or may be dealt within the statement”. The second part contains a mandatory obligation as the material part of it states with the significant parts italicised for emphasis that where in the opinion of the Inspector, “the appellant could (having regard in particular to current knowledge and methods of assessment) provide further information about any matter specified in Paragraph 3 of Schedule 3 and that further information is reasonably required to give proper consideration to the likely environmental effects of the proposed development, he shall notify the appellant in writing accordingly and the appellant shall provide that further information”.

Even if the first ES was defective, I am unable to accept the claimant’s submissions that the Inspector should have invoked Regulation 21 for three separate but interconnected reasons. First, Regulation 21 was not needed by the Inspector as both the first facultative and the second mandatory parts of Regulation 21 only apply in relation to “further” information being sought by the Inspector and that must mean information not yet in the Inspector’s hands as otherwise it would not be “further information”. In this case, by the time of the appeal, the Inspector already had in his possession, the second ES and so he did not need “further information”. Indeed paragraph 23 of the claimant’s amended grounds of appeal states that “the second ES which cured the deficiency of its predecessor was available to the Inspector and could be commented upon by the public at the inquiry”. Lord Kingsland has correctly conceded that the second ES contained all the environmental information that could be required by the Inspector. So neither the facultative nor the mandatory parts of Regulation 21 had to be invoked as the Inspector had in his possession all the relevant information because it did not have to be and was, not in fact, requested by him. Thus with the Second ES before him, the Inspector had no need and had no obligation to resort to Regulation 21, as he had all the information he required and he did not require to use any statutory means of obtaining any further information. Therefore the claimant’s submissions on the Regulation 21 issue fails.

Second, the Inspector was not permitted to use or invoke either the facultative or the mandatory part of Regulation 21, as no cogent reason has been put forward to show that he had any reason to believe that there was further information available which was not then before him. Thus, he was entitled to “subsume”, as he said that he did, the information in the Second ES into his decision. This means that I must reject the claimant’s complaints on the Regulation 21 issue for this reason as well as for the first reason.

Third, even if the first two reasons are incorrect, I do not accept that the only way in which an Inspector could take information in the second ES into account on the appeal on the first planning application was by invoking Regulation 21. There is nothing in the Regulations, which says that Regulation 21 constitutes the sole and exclusive way in which further environmental evidence can be adduced. All it does is to provide a facultative power and a mandatory duty for the Inspector to obtain information in certain limited circumstances. Lord Kingsland’s submissions on the Regulation 21 issue fail because if correct, they would mean re-writing Regulation 21 so as to contain words to the effect that no environmental evidence could be relied on by the Inspector other than that contained in the actual planning application or in the ES actually submitted with it unless the Inspector invokes Regulation 21.

Not only does regulation 21 not state this but the relevant part of regulation 4(2) of the regulations provides that an Inspector “shall not grant planning permission pursuant to an application to which this regulation applies unless [he has] first taken the environmental information into consideration”. That regulation requires that the ES should be considered but significantly it does not state either expressly or impliedly that this is the only environmental information that can be considered by the Inspector. This is not surprising as if Lord Kingsland was right, a claimant without invoking Regulation 21 could adduce no further environmental evidence, however minor at the hearing. Lord Kingsland has put forward attractive policy grounds showing why the need for an environmental audit of proposals might require that all material should either be in an ES or introduced under regulation 21 but the stark fact is that the regulations did not devise a regime along those lines. Instead a system was adopted, which does not preclude the use of other material in the Inspector’s hands, such as the second ES. This constitutes a further reason why the claimant must fail on the Regulation 21 issue.

The claimant’s new contentions on the Regulation 21 issue raised for the first time in his Reply.

In his reply at the hearing of the appeal, Lord Kingsland raised some new issues, which he had not mentioned in his original oral or written submissions. Mr. Corner for the Secretary of State did not object to this course but Mr. Barrett was not in court when Lord Kingsland made his reply as he had been excused from attending on the second morning as he had another professional commitment on that day and as it had not been anticipated that fresh points would be taken by Lord Kingsland in his reply. In those circumstances, it seemed appropriate to permit Mr. Barrett to make later written submissions on Lord Kingsland’s further points. Mr. Barrett duly made further written submissions to which Lord Kingsland later replied in writing and I now turn to consider those further contentions of Lord Kingsland raised for the first time in his reply.

He relies strongly on a statement of Sullivan J. in Paragraph 105 of R v. Rochdale MBC ex p. Milne 2001 JPL 470(“Milne”) that “the development which is described and assessed in the Environmental Statement must be the development which is proposed to be carried out and therefore the development which is a subject of the development consent and not some other development”. Lord Kingsland claims that this is the ratio of Sullivan J’s earlier decision in R v. Rochdale MBC ex p. Tew 2000 Env. LR1 (“Tew”) and he contends that it means that the development that was proposed to be carried out was the development described in the first application and its plans and which was assessed by the first ES submitted with the first application. That was not the subject of the development concerned described in the Inspector’s letter because the development that was not assessed was the development, which was assessed by the second ES. So Lord Kingsland says the first ES does not provide the environmental information and mitigation, which explores the consequences of the new landscape proposals. This he says is especially so in the case of the bund, which is described in the Oxford Concise English Dictionary as an “embankment, or causeway”. Thus Lord Kingsland contends that the assessment provided in the first ES is inadequate in providing the mitigation details in relation to the consent in development so that Regulation 21 is needed to fill the gap so as to ensure in Sullivan J’s words in Milne that “the development which is the subject to the development consent” is the “development which is described and assessed in the Environmental Statement”.

As a further alternative, Lord Kingsland contends the Inspector was in fact considering a new proposal, about which nobody had known as he had substituted part of the second planning application for part of the first planning application, but as I have explained, the claimant accepts it cured any defect in the first ES. He could have done this by using Regulation 21 but as he did not do so, he was not complying with Sullivan J’s statement in Milne. His justification for this approach is that the “development assessed in the Environment Statement” (namely that the first ES) will not be “the development which is the subject in the development consent”.

Mr. Corner for the Secretary of State contends that Sullivan J’s comments in Milne relied on by Lord Kingsland have been taken out of context, as they do not mean that each and every aspect of a development has to be in the ES accompanying the ES. I agree and do not believe that Lord Kingsland can obtain the` support that he seeks from Sullivan J’s comment. First, it is noteworthy that as Sullivan J. himself explained in paragraph 113 of Milne that the ES “does not have to describe every environmental effect… but only the “main effects” or likely significant effects”…”. So it follows that Sullivan J considered that the ES does not have to deal with every aspect of the development, a view with which I respectfully agree as being in accordance with the 1988 regulations. It will be recalled that the wording of Schedule 3 of the regulations with emphasis added requires the Environmental Statement “to identify and assess the main effects which that development is likely to have on the environment as well as a description of the likely significant effects on the environment”.

Second, in any event if Lord Kingsland was right in his contention that the development described and assessed in the ES had to be the development which it is proposed to be carried out and therefore the subject of development consent, it would mean that any later change to the development in the ES even if blessed with the approval of all parties could not be the subject of development consent. Such an approach is not supported by the 1988 regulations, which could have, but did not, create such a rigid or far-reaching scheme. The 1988 regulations do not forbid the approval of a development, which differed from what is contained in the original ES when they could have easily done so and there is no reason why the regulations should be so construed.

Third, the Court in Milne was not concerned with the issue of the possible use of Regulation 21 in a situation where full environmental information was contained in two documents before the Inspector as in the present case. I agree with Mr. Corner, that the court in Milne was not concerned with the type of information to be considered by an Inspector. So in his judgment, Sullivan J was not addressing the issue with which I am presently concerned and he was not required to nor did he seek to do so. Indeed, in the passage relied on by Lord Kingsland, Sullivan J was commenting on paragraph 2(a) of Schedule 3 of the 1988 regulations and this does not state that every conceivable aspect of the development has to be described but merely “the data necessary to assess the main effects which the development is likely to have on the environment”. Fourth, even if contrary to my view, the comments relied on by Lord Kingsland do, in fact, constitute the ratio of Tew, there is no legitimate basis for the contention that the Inspector cannot take subsequent information into account. If the powers of the decision-maker were to be fettered as Lord Kingsland suggests, so that no new information affecting environmental maters could be put forward without invoking Regulation 21, this should have been, but was not in fact, stated in the regulations and there is no basis for reading any of the regulations as Lord Kingsland suggests. He did not identify any rule of statutory construction that leads to the interpretation for which he contends.

Is there any material difference between the first and second ES?

Until now, I have been assuming in this judgment that there was a material difference between the first ES and the second ES and that is a significant assumption as if this did not exist, the Inspector could not have erred as he would in practice have been relying on the first ES and not the second ES in his decision. So, if I erred in deciding that Regulation 21 is not applicable to the present dispute, I must now consider if Lord Kingsland is correct in submitting that there was a significant difference between the two ESs. Mr. Corner points out that the basis for saying that the first ES was inadequate was a passage contained in paragraph 5.1 of the second ES, which records that the revised landscape section in the second ES incorporates issues raised by the LPA at a meeting on 7 January 2000 and at subsequent meetings on 14 January 2000 which were held to address concerns relating to landscaping and visual matters. Paragraph 5.1 of the second ES continues by saying that:

the key issues addressed at those meetings and incorporated into this revised text include:

the need to address the existing screening mounding around the southern flank of the site and to prepare a detailed planting plan which ensures that all existing losses are replaced and reinforced where appropriate.

prepare a Landscape Management Plan for the site, which not only incorporates the land in the application area but other land within the ownership of the quarry.

provide further details through cross-sections and critical vantage points of how much land filling would be visible above the existing quarry rim within each of the defined phases of development.

In any event, it is noteworthy as Mr. Barrett for IWM correctly contends that the LPA did not regard the first ES to be defective. In the report of the officers of the LPA to its Committee dated 10 May 1999, it was recommended that permission be granted on the first planning application, which implicitly indicated that the LPA and its officers were satisfied with the first ES. Although the LPA rejected the first application for permission, this was not on account of any defect in the first ES. Therefore, I agree with the Secretary of State and IWM that this shows that the first ES was not considered by the LPA to be defective. There is no contrary evidence to show that the LPA or anybody considered that the first ES was inadequate. No evidence was adduced by the LPA, the second defendant on this appeal on this or any other issue.

Mr. Barrett for IWM contends that to succeed on the Regulation 21 issue, the claimant needs to demonstrate but cannot actually show that the second ES was materially different from the first ES that had been submitted and consulted upon. In this context the first ES was submitted with the first planning application together with the further information submitted that was advertised in December 1998.

He submits that the invitation to compare the first ES plans and the plans that formed the Inspector’s Decision is not the appropriate basis for this appeal to proceed. He explains that the appropriate basis on which to consider the first planning application must include the revisions and refinements to the submitted scheme that were made during the consultation process and those matters were then the subject of the public consultation advertisement in December 1998. No cogent argument has been adduced against this

Mr Barrett contends that the claimant is incorrect in submitting that the first and second ES differed in at least two important respects namely those entitled “Bund Landscaping” and the “Draft Management Plan”. The differences between the two applications were described in the report to the Planning Committee on the second application page 517 as being:

(a) woodland management plan

(b) initial replanting of the existing screen bund (my emphasis)

(c) a contribution to highway safety matters

The claimant submits that the differences between the two Environmental Statements were acknowledged at paragraph 5.1.1 of the 2000 ES but IWM contends that a reading of that paragraph does not support that submission and he puts forward cogent arguments to support this.

Nevertheless, in the light of my findings that the Inspector did not err on the Regulation 21 issue on the facts of this case, it is unnecessary for me to reach a final view, although it seems that there was a strong case for concluding that there was no need for Regulation 21 for the additional reason that the landscape proposals in both the Environmental Statements were substantially the same.

The Landscaping Issue

Lord Kingsland contends that when any development proposals require environmental assessment under the 1988 regulations, planning conditions acquire a role of enhanced importance. So it is not permissible for conditions to be imposed which merely require a scheme for landscaping to be agreed between the developer and the local authority at a later stage especially where a development proposal has been deemed by the authorities as likely to have such significant environmental effects so as to merit an EIA requiring a mitigation scheme. It is said by Lord Kingsland that any other conclusion would defeat the purpose of the Directive since its environmental provisions cannot be invoked once permission has been granted. In other words, by delegating details of the scheme to the LPA in his decision, the Inspector was according to Lord Kingsland preventing the scheme from being subjected to the environmental audit required by the Directive and the Regulations. He contends that the Inspector failed to require the proposed development to comply with the proposed tree planting and grassland seeding schemes and mitigation proposals set out in the landscape proposals contained in the second ES.

Lord Kingsland seeks to derive support from the decisions of Sullivan J in Tew and Milne, in which the decision stated that reserved matters had to be “in substantial and compliance with” the scheduled development and that it also required the development to be carried out in accordance with the mitigation set out in the ES.

Sullivan J in Milne quoted from his own judgment in Tew (paragraph 125 at page 492) where he said with emphasis, added subsequently by italicising words:

“That is not to suggest that full acknowledge requires an environmental statement to contain every conceivable scrap of environmental information about a particular project. The directive and the assessment regulations require the likely significant effects to be assessed. It will be for the local planning authority to decide whether a particular effect is significant, but a decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it to a later stage would not be in accordance with the terms of Schedule 3, would conflict with the public’s right to make an impact into the environmental information and would therefore conflict with the underlying purpose of the directive”.

Lord Kingsland points out that it was the precision and tightness of conditions 1.7 and 1.11 in the decision under review in Milne that were crucial to the outcome of that case. Condition 1.7 of the decision under review in that case stated at page in 476 Paragraph 28 that:

“the development on this site should be carried out in substantial accordance with the layout included within the Development Framework document submitted as part of the application and shown on (a) drawing entitled ‘masterplan with building layouts’”.

The reasons given for the imposition of this condition was:

“the layout of the proposed Business Park is the subject of an Environmental Impact Assessment and any material or alteration to the layout may have an impact, which has not been assessed by that process”.

Condition 1.11 of the decision under review in that case on page 477 stated:

“the development should be carried out in accordance with the mitigation measures set out in the Environmental Statement submitted with the application unless provided for in any other condition attached to this permission”.

Lord Kingsland contrasts this with the conditions in the Decision Letter in the present case, which provides that: -

Condition 3:

3. Unless otherwise agreed in writing by the Local Planning Authority mineral extraction, landfilling, restoration and aftercare of the site shall be carried out in accordance with the following plans:

Amended plan referenced 13/5059/4 and titled “Application Boundary and Land Ownership” as received by the Local Planning Authority on December 1998.

Plan titled “Site configuration and Phasing” as referenced 16/5059/4 as revised in February 2000.

Plan titled “Junction Improvements (Ghost Island Junction) and Footpath Alterations” referenced Ref NL02785 as revised in December 2000.

Plan tiled “General layout of Site facilities” referenced and dated 30/5059/4 January 1998.

Plan titled “Restoration Plan Pre-settlement (Worst Case Scenario) Contours Shown” referenced NL02785/49 and dated Feb 2000.

Plan titled “Restoration and Pre-Settlement Contours” referenced 25/5059/4 and dated Nov 1997.

Plan titled “Site topography & Proposed Access Road” referenced 34/5059/4 and dated September 1997.

Plan titled “Noise Monitoring Locations” referenced 9/5059/4 and dated October 1997.

Save where measures are required by the conditions set out elsewhere on this permission which shall take precedence over the above approved plans.

Condition 5:

4. No development shall take place until a detailed scheme for the landscaping of the site has been submitted to and approved in writing by the Local Planning Authority. Such scheme shall include details of:

a) the positions, species and sizes of all existing trees, shrubs and hedgerows on the site which are to be retained and the proposals for their protection throughout all operations on site;

b) the position, species, density and initial sizes of all new trees and shrubs;

c) the method of planting to be used including any protection measures;

d) any hard landscaping proposed including dry stone walls;

e) the programme for implementation and carrying out of the scheme.

The scheme as approved shall be carried out in full in accordance with the agreed programme of implementation following the date of such approval in writing.

Condition 6:

5. A landscape management plan including management responsibilities and maintenance schedules of all landscaping areas shall be submitted to the Local Planning Authority for approval in writing concurrent with the landscaping scheme required by condition 5 above. The landscape management plan shall be carried out as approved by the Local Planning Authority for the duration of the landfilling and site restoration works.

Lord Kingsland attaches great importance to the provisions in condition 5 that “a detailed scheme for the landscaping of the site” including “the programme for implementation” has to be approved following future negotiations between IWM and the local authority. He stresses that unlike in Milne, in the present case there is no guarantee in this or any other condition attached to the permission that the final implemented detailed scheme would conform with the scheme of mitigation identified in the ES and endorsed by the Inspector as being a scheme to mitigate the likely adverse environmental effects of the development proposal on the landscape. In addition, he says that there would be no opportunity for further environmental assessment to act as an additional control.

Lord Kingsland points out that there is no guarantee that the detailed scheme would conform with the application scheme in relation to which the environmental assessment relates because condition 3 adopting the application plan begins by stating that “unless otherwise agreed in writing by the Local Planning Authority”, and it ends with the words “save where measures are required by the conditions set out elsewhere on the commission which will take precedence over the above plans”. He contrasts this with the condition 1.7 in Milne and he submits that there is no guarantee to be found in the conditions attached to the Inspector’s decision that even the approved plans would be complied with. I accept that the conditions in Milne were significantly more specific than those in the Decision Letter in the present case and that they gave no real discretion to the LPA, but it is noteworthy that Sullivan J did not say without that type of guarantee, the conditions in that case would have been impugned. Before considering the objections to the conditions, it is now necessary to consider what IWM had agreed to as the Inspector attached importance to it.

The undertaking submitted by IWM.

In order to obtain the complete picture of what was envisaged, Mr. Barrett for IWM points out that IWM had submitted an undertaking to the LPA under section 106 of the Town and Country Planning Act 1990 (“IWM’s undertaking”) and as I have explained in paragraph 22 above, the Inspector attached weight to this undertaking when reaching his decision as is shown by the Decision Letter. The Inspector says in paragraph 49 of the Decision Letter that having considered “the potential environmental impacts of the proposals on the lives of the community and on the natural environment”, he concluded that IWM’s undertaking: -

“.. provides for additional controls over the adequacy of site engineering works for the provision of highway improvements, for a contribution to Bradford City Council of Ј40,000 for traffic safety measures in Denholme and for landscape management of the site and its immediate surroundings. A local Liaison Committee would also be established. I regard these obligations on [IWM] and the land owner as providing significant environmental community benefits which would mitigate the impact of the developments as already discussed above”.

Clause 5.1 of IWM’s undertaking contained an obligation by IWM as soon as practicable after the undertaking had been given to prepare and submit to the LPA a Landscape Management Plan, which would provide for the landscaping of the site and immediately surrounding area and which upon obtaining LPA’s approval, IWM would have to implement. The objects of the plan would be to maintain and enhance ecological diversity, to regenerate retained elements (such as mature trees, hedgerows), to manage the existing landscape and grassland features (such as woodland, hedgerows and grassland had continued health and vigour whilst maximising wildlife value), to manage existing grassland primarily for their botanical interest, to achieve rapid establishment and vigorous, healthy growth of new native screen planting, to achieve rapid establishment and then to maintain the reinstated landscape and grassland features such as woodland, hedgerows and grassland for increased landscape visual and wildlife value. The other objects of the Local Management Plan included maintaining and enhancing ecological diversity as well as ensuring continuity of management. There were also various significant default provisions in IWM’s undertaking relating to the position if IWM defaulted or if the LPA did not approve the Landscape Management Plan.

The Inspector also noted that there was a deed between the landowners and IWM, which enabled IWM to take control in the event of the landowner not complying with best environmental practice in working the quarry. He stated in paragraph 50 of his decision letter that “given the history of the site, this [right] adds confidence to my conclusions as to the acceptability of the overall development”. In paragraph 51 of the decision letter as I have already stated, the Inspector explains that “with the imposition of suitable planning conditions and giving weight to the provisions of the Section 106 obligation and other legal safeguards, I am satisfied that the site can be worked and filled to high environmental standards and can be restored to fit in with the local landscape”. Thus the landscaping conditions in the Decision Letter has to be read in the light not only of the IWM undertaking and this deed, but also of other significant aspects of the project.

Mr. Corner for the Secretary of State contends that it was appropriate to impose conditions on landscaping and he points out that in Milne, Sullivan J specifically accepted that conditions treating landscaping as reserved matters are acceptable within the system of an environmental assessment. As I have said, I agree with Lord Kingsland that it is important to bear in mind that the conditions in Milne were very different from those in the present case as the LPA there had less discretion than the LPA enjoyed in the present case. Nevertheless, Sullivan J was not determining what degree of discretion could in that case be delegated to the LPA in respect of residual matters. He merely held on the facts in the case before him that no complaint could be made about the delegation there. In other words, his decision was in fact- sensitive and he did not specify the demarcation lines on when discretion could or could not be given to the local authority, but he made a number of useful statements on this. His approach and actual decision were based on the nature of the facts in the cases before him and it is now appropriate to set out the background to those applications.

The first planning application in this case was very different from the outline planning permission considered in Milne and Tew as unlike the application in those cases, it was not and could not have been an outline planning permission. By its very nature, the first planning application and the appeal related to a “full” application in which considerable detail was provided. In landscape terms, the proposal was fully particularised in terms of its final height and contours as well as relationship to surrounding land. This is totally different from the position in Tew and Milne, in which no detail could have been provided on the height, massing, scale or even siting of buildings that were proposed to be constructed at some future undetermined date. Self evidently on this planning appeal, the landscape proposals in a case such as the present are formed by the final landform that was proposed. So what was needed to be landscaped was fixed. Consequently, the landscape conditions in the Decision Letter did not require to be drafted in such a way as to cover all the eventualities that could arise in the case of a bare outline permission, as was in the position in the cases decided by Sullivan J.

The claimant can only succeed if the Inspector has made an error of law, such as reaching a decision not open to him It is important to bear in mind that it is not every environmental effect that has to be considered by the decision maker, but the Inspector is entitled to say in respect of any matter, and that includes landscaping, that he has enough material to be satisfied by conditions and undertakings, especially as he is in a strong position to determine what is significant. Sullivan J said (paragraph 113 of Milne at page 490) in answer to a submission that “reserved matters details of the means of access or landscaping are capable of having an effect on the environment and that is why they are reserved for the subsequent approval”: -

“That ignores the fact that the environmental statement does not have to be described every environmental effect, however minor, but only the ‘main effects’ or ‘likely significant effects”. It is not difficult to see why this should be so. An Environmental Statement that attempted to describe every environmental effect of the kind of major projects where assessments is required would be so voluminous that there would be a real danger of the public during consultation, and the local authority in determining the application “losing the wood for the trees”. What is ‘significant’ has to be considered in the context of the kinds of developments that are included in schedules 1 and 2 [of the 1998 Regulations]. Details of landscaping and an application for an outline planning submission may be ‘significant’ from the point of view of neighbouring householders and thus subject to reserved matters of approval but they are not likely to have ‘a significant effect on the environment’ in the context of the assessment regulations. The local authority are entitled to say ‘we have sufficient information about the design of the project to enable us to assess its significant effect on the environment. We do not require details of the reserved matters because we are satisfied that such matters, provided they are sufficiently controlled by a condition, are not likely to have any ‘significant effect’”.

I respectfully agree and consider that the Inspector in this case was entitled first to determine that the conditions coupled with the IWM undertaking were not likely to have any significant effect on the environment and second to consider that enough detail was provided for the application in this case to be properly assessed by him according to the Directive and the regulations. The Inspector was entitled on the evidence to come to a number of decisions and one of those was the one that he reached of granting planning permission subject to the conditions that he imposed, particularly having regard to the obligations in IWM’s undertaking. In consequence, the decision of the Inspector to impose these conditions and not to ensure compliance with the second ES cannot be set aside as none of the well-known grounds for succeeding on a section 288 application have been established. Indeed the claimant’s case seemed

If I had been in any doubt about this, I would have reached that decision for two other reasons. The first reason is that the argument of the claimants fails as it assumes or presupposes that the local authority will or may exercise its powers in a way adverse to the environment. This is not a valid approach because as Sullivan J explained in Milne (paragraph 128) with emphasis added by italics:-

“any major development project will be subject to a number of detailed controls, not all of them included within the planning permission .. In assessing the likely significant environmental effects of a project the authors of the environmental statement and the local planning authority are entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority: see for example, the assumptions made in respect of construction impacts above. The same approach should be adopted for the local planning authority’s power to approve reserved matters. Mistakes may occur in any system of detailed controls, but one is identifying and mitigating the “likely significant effects” not every conceivable effect, however minor or unlikely of a major project”.

Thus, the Inspector was entitled to take the view that the LPA would act with a reasonable degree of competence in mitigating the effects of the scheme. The final landform was secured by plans by Condition 3 and those plans showed clearly where the landscaping was proposed to be located, subject to the agreement of the LPA, who it could be assumed by the Inspector would act with reasonable competence. Under condition 5, no development could take place until the LPA (who it could be assumed would act with a reasonable degree of competence) approved a detailed scheme for the landscaping of the site, which had to include details of the species and age of trees to be planted. The LPA could be expected to act with a reasonable degree of competence in exercising their discretion. The second factor undermining the claimant’s submissions on the landscaping issue is that the 1988 regulations do not inhibit or restrict the Inspector’s discretion to reach the decision that he did although they could have done so. It is significant that the regulations do not impliedly or expressly contradict this. Thus the claimant fails on the landscaping issue.

The Dust Issue

The thrust of the claimant’s criticisms relating to the landscape issue are also made in respect of he treatment by the Inspector of the dust problems which he dealt with in condition 9 of the decision letter, by providing that: -

“no development shall take place until a scheme to suppress dust generated on site has been submitted to and approved in writing via the Local Planning Authority. Once approved such a scheme should be implemented in full until site restoration is completed in accordance with condition 19 below”.

It is also said by the claimant that the Inspector did not stipulate any mitigation measures in the permission relating to dust. The Secretary of State and IWM take precisely the same points in respect of the dust issue as they did in respect of the landscaping issue. The need for a dust mitigation scheme was identified by the Inspector as a matter to be addressed. The LPA, the second defendant to his application, had the power and expertise to deal with this issue and there can be no justification for the submission that the Council would simply ignore their duties. There is no reason why my conclusions on the landscaping issue should not or does not apply with equal force to the dust issue with the consequence that I do not accept Lord Kingsland’s contentions on this issue, In essence, the Inspector was entitled to reach his decision on the dust issue and there are no grounds under section 288 for impugning the decision of the Inspector not to require the proposed development to comply with the dust mitigation measures set out in the second ES.

The Quashing Issue

This issue is academic because I have not found that any of the complaints of the claimant are justified. In case I am wrong, I will consider briefly whether even, if contrary to my views, the claimant’s contentions on the Regulation 21, the landscaping or the dust issues are correct, the decision should be quashed. It is clearly settled law that the Court has a discretion and Lord Kingsland submits that when the use of this discretion in environmental matters was recently considered by the House of Lords in Berkeley v. Secretary of State [2001] 2 AC 603, it was held that the discretion to refuse to quash a decision in environmental maters should be used extremely sparingly where procedural breaches of the regulations have been established. Lord Bingham explained at page 608 that:

“By virtue of regulation 25 the grant of planning permission in contravention of regulation 4 is to be treated for purposes of section 288 of the Town and Country Planning Act 1990 as action which is not within the powers of the Act. Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on Member States by article 5 of the E.C. Treaty (now article 10 E.C.), the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by Article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the Regulations ….. all point towards an order to quash as the proper response to a contravention such as admittedly occurred in this case”.

Lord Hoffman, who delivered the main speech said at page 616:

“A court is therefore not entitled retrospectively to dispense with the requirement of an Environmental Impact Assessment (EIA) on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues.

Although section 288(5)(b), in providing that the court “may” quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with is obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under Article 10 (ex Article 5) of the E.C. Treaty to ensure fulfilment of the United Kingdom’s obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds”.

He also explained at page 617:

“In the present case the Directive had been transposed into domestic legislation and there was a failure to comply with the terms of that legislation. In my view, a court should not ordinarily be willing to validate such an act on the ground that a different form of transposing legislation (for example by allowing an environmental statement to take the composite form put forward in this case) might possibly have also satisfied the terms of the Directive. I would accept that if there was a failure to observe some procedural step, which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law. But that is not the case here.”

Mr. Corner for the Secretary of State submits that the decision in Berkeley is dependent upon its own facts and that it has to be read in that light. It is noteworthy that in that case, no document purporting to be an ES accompanied the planning application and that neither the LPA nor the Secretary of State who “called in” the application required one. All parties agreed that this was a fundamental flaw, but the Secretary of State argued in the House of Lords in Berkeley that there had nevertheless been substantial compliance with the requirements as the equivalent of an ES could have been found by piecing together information from a number of different documents from a number of different sources, some of which were incorporated in or cross-referred to by others. Lord Hoffmann rejected this argument saying at page 617 that:-

“I do not consider this paper chase can be treated as the equivalent of an Environmental Statement. In the first place, I do not think it complies with the terms of the Directive. The point about the Environmental Statement contemplated by the Directive is it constitutes a single and accessible compilation produced by the applicant at the very start of the CATION and by that process, the relevant environmental information and the summary in non-technical language .. I do not think that it allows MS states to treat a desperate collection of documents produced by parties other than the developers and trace will only by a person with a good deal of energy and persistence satisfying the requirement to make available to the public the information which should have been provided by the developers”.

It is said by the respondents to this application that the comments of Lord Hoffmann do not apply as a “paper-chase” was unnecessary in the present case and in any event that all the relevant environmental information in the present case had already been supplied by the time that the Inspector had become involved. They point out that in R (on the application of Murray) v. the Derbyshire County Council (8 October 2000 – CO/1493/2000), Maurice Kay J held that the Berkeley test was not intended to be of universal application and, in particular, he said that “it would be most unfortunate” that if a document described as a ES “could be treated by all parties as an ES up to and including a planning decision and only be called in question in a subsequent application for judicial review”. He considered it important that the purported ES in the case before him “complied or at very least substantially complied with the requirements of the regulations”.

In Murray, the developers had submitted a lengthy document and as Maurice Kay J explained:

“the Council had the power to request further information (Regulation 21) but did not do so. Neither did the applicant request the Council to exercise that power. Indeed no criticism was made of the document until very shortly before the hearing”.

Maurice Kay J held on the facts of the Murray case that sufficient information had been provided and so he refused to quash the decision. Clearly Berkeley does not decide that any breach of the regulations would inevitably and automatically lead to the quashing of a decision although the passages that I have already quoted show how seriously the courts would regard such a breach. In the present case, it is common ground that the second ES could have been commented upon by the public at the Inquiry so that if the claimant was right on the Regulation 21 issue, any breach by the Inspector in the present case was of relatively minor significance. Thus if the claimant had been successful on Regulation 21 sub-issue, similar reasoning to that which prevailed in the Murray case would be applicable in this case because of the amount of information provided in the first and second ES, both of which could be commented on with the consequence that even if there had been a breach of Regulation 21, there would have been no prejudice to the claimant here, unlike her counterpart in Berkeley. Thus the decision should not be quashed and an additional or alternative reason why it should not be quashed is that even if the Inspector had erred on the Regulation 21 issue, I consider that he would have reached the same conclusion if he had invoked that regulation because, as I have explained, paragraph 23 of the claimant’s amended grounds of appeal states and concedes that “the 2^nd ES, which cured the deficiency of its predecessor was available [for consultation] and could [have been] commented on by the public at the Inquiry” before the Inspector. So even if I am wrong on the Regulation 21 issue raised by the claimant, the decision should not be quashed for either or both of these two reasons.

Even if I were wrong on the landscaping or dust issues and the claimant had succeeded solely on either or both issues, I do not consider that the Berkeley principle applies in the light of the nature of these alleged breaches, which are not based on any breach of a specific provision of the Directive or of the 1988 Regulations and in any event alternatively or additionally, all interested parties had been able to comment on both or either of these issues before the Inspector issued his decision letter dealing with these matters. Third, success on the claimant’s part on any of the three issues had to be considered in the light of their significance, which entails looking at matters such as the obligations imposed on IWM by its undertaking on the landscaping issue and the lack of significance on the landscaping and dust issue compared with the much more important and troubling traffic and noise issues which are not the subject of any complaint; these factors would have militated against quashing the decision.

Thus, notwithstanding the clear and careful submissions of Lord Kingsland, I must reject this application. I will hear counsel on any consequential applications that they might wish to make when it is convenient for them.

*************************

(Post Judgment Discussion took place on 11^th January 2002)

MR JUSTICE SILBER: Lord Kingsland, I know the reason why you are in sartorial elegance.

LORD KINGSLAND: I do apologise for being seriously underdressed this afternoon.

MR JUSTICE SILBER: I fully understand. Perhaps I ought to, before you make your application, pass down to you a letter which I received from the Treasury Solicitor this morning.

LORD KINGSLAND: Yes.

MR JUSTICE SILBER: Have you seen a copy of it?

LORD KINGSLAND: No.

MR JUSTICE SILBER: I am afraid it has been photocopied rather badly because at the top of it is the words "the Treasury Solicitor", but you will see what the letter says. (Handed)

LORD KINGSLAND: I am much obliged. Thank you.

MR JUSTICE SILBER: Take your time reading it.

LORD KINGSLAND: My Lord, I am most grateful to you for drawing this letter to my attention.

MR JUSTICE SILBER: I have also another letter to show you. It is just in fact from Walker Morris. It says that they were -- that is 12th December:

"We confirm that we are happy for any consequential matters to be dealt with in writing and so we do not propose to attend court on 11th January 2002. We look forward to hearing from you..." (quote unchecked)

Well, they know from my judgment that I did not agree to that course, but they all know about today's hearing and have decided not to attend.

LORD KINGSLAND: I have also not seen that letter, my Lord, but anyway, I now know.

MR JUSTICE SILBER: Can I raise one matter with you which, and this might well be a fault in the system at this end, which is I did not get any comments from you on the draft judgment. I mean any of the obvious errors in it.

LORD KINGSLAND: No, that was simply because, of course, my eyesight is failing all the time and I could not find any error in the judgment of the sort that I thought ought to be drawn to your attention, the technical sort. There are other matters about your judgment.

MR JUSTICE SILBER: Well, which you will come to. We will discuss that in a minute. I received a few points from Mr Barrett, but I am told I am now getting some stuff from the Treasury Solicitor.

LORD KINGSLAND: Unfortunately, because I have been on public duties on Wednesday and Thursday and was unable to look at the papers to prepare - I have no papers; I have no access to any of the papers - I was not able to refresh my memory either of the contents of your judgment or, indeed, of the various submissions that I made to your Lordship throughout the hearing and, indeed, on paper thereafter. But I will look through the judgment as soon as I can so that my comments, if any, can coordinate with the comments of the Treasury Solicitor.

MR JUSTICE SILBER: Yes. Well, can I deal with the costs, first of all? Which is that, the point made by the Treasury Solicitor is the usual order for costs, but, in practice, as your client is legally aided, the order should not be enforced without permission.

LORD KINGSLAND: Yes. Yes.

MR JUSTICE SILBER: I have been helpfully given some wording which is that the costs of the defendant be paid by the claimant but the determination of the claimant's liability for the payment of such costs be postponed to any further application.

LORD KINGSLAND: Yes, and I have to ask from you the usual legal aid order, it used to be called the legal aid order.

MR JUSTICE SILBER: It is now called -- do you have it?

THE COURT ASSOCIATE: Community Legal Services Funding Assessment, my Lord.

MR JUSTICE SILBER: Do you have a certificate on file? If we have not, I will just make an order that that assessment will take place from?

LORD KINGSLAND: I have no instructing solicitors with me.

MR JUSTICE SILBER: I make that order, which is a Community Legal Services Funding Assessment.

LORD KINGSLAND: It is the first time I have come across one of these orders, my Lord, and I would have known its name had I been able to refresh my memory this morning.

MR JUSTICE SILBER: Well, I should have know it, because I have made quite a few of them and I also make the order for costs, costs of the defendant.

LORD KINGSLAND: As I understand it, the third defendant did not raise the question of his own costs, which is sometimes a matter.

MR JUSTICE SILBER: That is Walker Morris's client?

LORD KINGSLAND: Yes.

MR JUSTICE SILBER: Well, they have not raised the question, so.

LORD KINGSLAND: We do not have to go through----

MR JUSTICE SILBER: Bolton?

LORD KINGSLAND: The increasingly familiar case of Bolton.

MR JUSTICE SILBER: Yes, so we do not need to so.

LORD KINGSLAND: Yes, we are just talking about the costs of the Treasury Solicitor.

MR JUSTICE SILBER: Yes. I actually had, but do not have with me, a schedule of theirs, but I am just going to order that the whole question be postponed.

LORD KINGSLAND: Yes. I am much obliged, my Lord. Now I have an application to make for leave for appeal. Now I understand that the application, from the letter that your Lordship has kindly shown to me, that this application is not opposed.

MR JUSTICE SILBER: Yes, they do not oppose it, but I still have to----

LORD KINGSLAND: I am not suggesting for a moment that I can get away with that.

MR JUSTICE SILBER: No.

LORD KINGSLAND: But they are not resisting it.

MR JUSTICE SILBER: They are not resisting it, but I still have to be satisfied.

LORD KINGSLAND: With respect, my Lord, I would suggest that the fact that they are not resisting it is a factor that your Lordship ought to take into account when making your decision on this matter.

My Lord, I think your Lordship had sight of my detailed response to the observations of the third defendant, which he made in writing because he was unable to be in your Lordship's court on the second morning, and your Lordship, I am sure, will recall what I said there and what I am going to say now has more than a glancing similarity to those comments.

MR JUSTICE SILBER: In essence, you say I got it wrong and you have good prospects of success.

LORD KINGSLAND: Well, that is my conclusion, but I reach it by a route which, in my submission, the interpretation of the Environmental Impact Assessment Directive Regulation is an exceedingly live issue in the courts at the moment and your Lordship, by now I know very familiar with Berkeley and with Milne and Tew, but there have been other cases such as Huddleston (as heard) which have addressed other parts of the Detective. And the recent decision of the European Court of Justice which has clarified the direct effect of 4(1) and 4(2) has meant that this has become quite a widely litigated part of the law.

Now the interpretation of Regulation 21 is a matter which has not previously fallen before the English courts and, in my submission, I think this is reflected entirely and rightly reflected in your judgment, my Lord. You recognise that there is an important issue here: is Regulation 21 in a particular set of factual circumstances binding on an inspector? Or is it not? There is not a simple or clear answer for two reasons: first of all, because the Regulation has a directory part and a mandatory part; and secondly because it is not clear that even if the Inspector under the directory part exercises his discretion not to admit a piece of information relating to the environmental statement, it is not clear whether or not he is judicial reviewable for taking his decision on the basis of an incomplete environmental statement.

Now my submissions in relation to that were twofold: first of all, in the case of my client, we came under the mandatory part of the Regulation and that, therefore, the Inspector was obliged to exercise the powers, indeed had a duty to exercise his powers, under Regulation 21. But even if we came merely under the directory part in circumstances where the information was crucial to the legality of the environmental statement, a decision not to use Regulation 21 inevitably makes the Inspector's decision letter defective and therefore void, subject, of course, to the quashing discretion that the courts have.

As far as the defectiveness is concerned, your Lordship will remember this was a lively issue in the course of the hearing, my submission is that it is quite clear that in the correspondence between the local authority and the developer in January 2000, it is quite clear that the local authority felt that something was missing from the first environmental statement, and by that I mean it was not just stated as missing from the first environmental statement, it was stated as missing from the first environmental statement and all the extra information that was put in up to the second advertisement in December 1998. It was quite clear that the local authority still felt that something was missing and something was important enough to require putting in the environmental statement.

Now, your Lordship will recall what Sullivan J said in Milne about the wide discretion the local authority has to decide whether something is significant or not, and requires mitigation or not. Now, in my submission, the local authority thought that something ought to be in the second environmental statement that was not in the first. That was an admission by the local authority that the developer had not dealt with a significant environmental effect in the first environmental statement and needed to do so in the second. And so, even if your Lordship is right that the matter falls under the directory part of Regulation 21, the failure of the Inspector to use 21 in his discretion to bring in the second environmental statement means that the first environmental statement is defective in law in relation to the application.

I have made my point rather clumsily and long-windedly, but in my view this is a point of public importance because it is absolutely clear that there will be many occasions when inspectors will feel there is a deficiency of information in relation to the environmental statement that they have had sent to them down in Bristol, and that they will need to request that information. It will make a great deal of difference to the way in which inquiries are conducted as to whether or not this procedure under Regulation 21 has to be gone through, or whether the Inspector can use informed means of the sort that he used. Now I apologise for not being able to draw your Lordship's attention to the relevant----

MR JUSTICE SILBER: No, you put it----

LORD KINGSLAND: I think your Lordship has the gist of what I am saying.

MR JUSTICE SILBER: Yes, certainly. Certainly, I do and I am very conscious that you address me very clearly.

LORD KINGSLAND: I think in your judgment your Lordship -- I mean the implication from the way that your Lordship has approached it is that you would have -- I mean, there are two possible answers to this: either there is an obligation or there is not. In my submission, it is not so clear.

MR JUSTICE SILBER: Yes, it is really whether I consider the point would have a real prospect of success. It is not the old arguable point that we deal with in judicial review applications, but it is a reasonably high threshold.

LORD KINGSLAND: Yes, well, my Lord, one has to look at the interpretation of Regulation 21 through the Directive. The Directive imposes an obligation on the member States to make sure that any application which gives rise to significant effects is dealt with by an environmental statement. Now the local authority clearly regarded this application as giving rise to some significant effects. Some of those significant effects were dealt with in the first environmental statement, but at least one was not; it was dealt with in the second environmental statement. That statement came before the inquiry in an informal way, without the necessary, or required, advertising procedure.

So, in my submission, on the assumption that your Lordship accepts Sullivan J in Milne, it is the local authority's discretion as to whether something is or is not important. In my submission, the behaviour of the Inspector fell below the standard that was required by the Directive.

I entirely understand the real prospect, but in my humble submission the real prospect point in the case of regulation 21 is better addressed in the context of your Lordship's overall discretion as to whether or not to quash, because in my view there is a real prospect of success on the failure of the Inspector to comply with 21.

But there is then the other question that your Lordship has to consider in the context of the whole story, does this defect justify quashing the whole thing? And that is a matter which your Lordship deals with, in my respectful submission, at a later stage.

MR JUSTICE SILBER: Yes. I am very conscious of your arguments on this.

LORD KINGSLAND: Yes, I hesitated to submit to you----

MR JUSTICE SILBER: I reread my judgment actually just before I came into court.

LORD KINGSLAND: And then, my Lord, there are two other points.

MR JUSTICE SILBER: The landscape and the dust?

LORD KINGSLAND: Yes, and also there is a related point to 21 and that is that that paragraph in Milne, I think it is either 100----

MR JUSTICE SILBER: Yes, I know the point.

LORD KINGSLAND: Says, you know, that the environmental statement must relate not only to the application but also to the decision and two of the five plans in the conditions which reflected the decision were changed. Your Lordship considered that in your judgment.

In my submission, the principal point of Sullivan J's paragraph is a very important one and, in fact, a common sense one: if you environmentally assess and reach conclusions about the environment in a statement, in relation to a particular project, and then that project is changed in the course of a planning inquiry so that it becomes a different project, in my submission, the Inspector was under a duty to consider whether or not the environmental statement ought to be, as it were, redone. I think the view that your Lordship took was that it is really an issue about the scope of the discretion of an inspector in the course of conducting an inquiry and how narrowly or widely that ought to be constrained.

Then the third point to which I do attach considerable importance is that, in my submission, the law requires the conditions in a planning decision to enforce the development consent and the development consent in the Inspector's decision letter quite clearly incorporated the mitigation set out in the second environmental statement in relation to the mound, which although it seems a relatively small part of the project, geographically, it was a crucial part of the visual impact, and that was one of the main reasons why the project was refused first time around.

Now I accept entirely that the mitigation in the second environmental statement solved the problem. The difficulty, in my submission, is that the way the conditions were worded, and your Lordship knows what I said, I do not need to go through the detail, and even though I could very ably remember without the documents in front of me, that my submissions were that if you look at the text of conditions 3 and 5 and, indeed the same applies to dust in condition 9, the discretion left to the local authority or the developer is too wide because it does not contain those two qualifying conditions in Milne about the conditions having to respect the litigation.

In my submission, this is an important point of principle in relation to the environmental impact assessment which has come up for the first time in front of your Lordship and it has been in front of Sullivan J in an outline planning application, this is the first time it has been in front of a court, to my knowledge, in relation to a detailed planning application. The extent to which the mitigation set out in an environmental statement and accepted by a judge should be imposed through conditions on the developer and the local authority is clearly an important point of principle. I think your Lordship recognised that. Your Lordship took the view that in this case, even though there was no Milne guarantee but, nevertheless, the commonsense factor and the fact that there had been an undertaking by the third developer really meant that a reasonable man would conclude that, in practice, the developer and the local authority would implement according to the second environmental statement.

In my submission, your Lordship has left far too wide a discretion to the local authority and the developer and, in particular, I submit to your Lordship that the undertaking is neither here nor there. There is an undertaking, but the undertaking is only triggered once there is an agreement between the local authority and the developer on what the mitigation plan should be. The undertaking is not an undertaking to implement the mitigation plan; it is an undertaking to implement the mitigation plan once it has been agreed under condition 5. And condition 5 does not require the local authority and the developer to implement the mitigation plan. It just requires them to come to an agreement about the detail. And the details are not the details which were set out in C1.1 of the second environmental statement.

MR JUSTICE SILBER: But condition 5 says that no development shall take place until a detailed scheme has been submitted and approved?

LORD KINGSLAND: Yes.

MR JUSTICE SILBER: So, in other words, nothing can take place until that stage has been dealt with.

LORD KINGSLAND: That is right. But my concern is that by the approval of the detailed scheme there is no obligation in the condition, or indeed on the undertaking, on the developer and the local authority to agree a detailed scheme which is in conformity with the mitigation set out in the environmental statement. In fact, the mitigation set out in the environmental statement in detail is not even one of the documents included in condition 3, and the local authority clearly thought that mitigation was crucial because otherwise they would not have insisted that it appeared in the second environmental statement.

MR JUSTICE SILBER: Yes.

LORD KINGSLAND: So, in my submission, your Lordship, I say this very respectfully because a great deal of information was crammed into a very short time in the hearing--

MR JUSTICE SILBER: Yes.

LORD KINGSLAND: --in my submission, the undertaking is neither here nor there. If you can take the undertaking away from your Lordship's argument there, it is quite an important plaque in your Lordship's conclusion about that part of the case.

MR JUSTICE SILBER: What I said about this is:

"Thus, the Inspector is entitled to take the view that the LPA have acted with a reasonable degree of competence in mitigating the effects of the scheme. The final landform was secured by plans by Condition 3 and those plans showed clearly where the landscaping was proposed to be located, subject to the agreement of the LPA, who it can be assumed by the Inspector would act with reasonable competence. Under condition 5, no development could take place until the LPA (who it could be assumed would act with a reasonable degree of competence) approved a detailed scheme of the landscaping of the site, which had to include details of the species and age of trees to be planted. The LPA..."

Then "reasonable competence" and also:

"...the 1988 regulations do not inhibit or restrict the Inspector's decision to reach the decision that he did..."

LORD KINGSLAND: The crucial thing is that the detailed mitigation that had to be agreed had to conform with, I think, it was plan 1.1 C. Your Lordship will recall the plan which not only set out the trees, but it also had the details of each species in columns on the document. Now if that document had been included in condition 3, then my submission on this point would be much weaker. But the only document included in condition 3 was the final elevations on the worst case which covered the mound in trees, but the details which were required in condition 5 had already been decided and included in the environmental statement. So the Inspector was quite wrong to give -- in Milne of course, Sullivan J said 'You can leave details to the conditions, where appropriate'. But here the details were considered so important that the local authority had insisted that they were contained in the second environmental statement.

In my submission, what the Inspector ought to have done was to take the plan, the second environmental statement, and put it in condition 3, but he did not do that. He did the opposite. He neither included the detail plan, I think it is 1.11C in bundle - I cannot remember what bundle it is in, if he put that plan in - I have made this point. This point is all in my written observations.

MR JUSTICE SILBER: Yes, I remember that.

LORD KINGSLAND: If he included it in condition 3 then it would have been much more -- then I think, in my submission, your commission-sense argument would have been perfectly justified because then the wording would still have let the -- it would have been most unreasonable of them not to have followed it. But it is not there. It is not there.

So, in my submission, my Lord, on the facts here that we have a good, I would say, my Lord, a good chance of success and also it would, in my submission, be much more difficult for your Lordship to justify exercising your discretion not to quash.

And perhaps I should just say again that I think the fact that the Treasury Solicitor has decided not to oppose this application----

MR JUSTICE SILBER: It is very common these days. It is done for saving cost.

LORD KINGSLAND: Well, that is not said on the face of the letter.

MR JUSTICE SILBER: It is. It is. "In the interest of saving costs I do not intend..."

LORD KINGSLAND: I think, I hope it is not a cheap point.

MR JUSTICE SILBER: No, it is a valid point. There is a difference between coming here and fighting it tooth and nail and not turning up.

LORD KINGSLAND: In the vast majority of 2.8 applications your Lordship would be considering the exercise of discretion of the local authority in the context of law which is settled. Here your Lordship has a very trying task of not only having to assess the exercise of discretion, but your Lordship is having to assess that exercise of discretion in relationship to goal posts that have not yet stabilised.

MR JUSTICE SILBER: Yes.

LORD KINGSLAND: We do not yet know exactly what the law is either on Regulation 21 or on the proper relationship between a decision letter and the degree of obligation included in the conditions. Without the environmental statement an inspector is entitled to give a very wide discretion to the developer and the local authority. But with the environmental statement, in my submission, the Inspector's room for manoeuvre is much much narrower and, in my submission, the Inspector has exceeded the limits set down by the law.

MR JUSTICE SILBER: Yes. Well, you put it remarkably persuasively, but I am afraid, at the end of the day, you will have to go and ask the Court of Appeal for permission. I will extend your time for going to the Court of Appeal until we get the final judgment sorted out, which means getting it out. Let us work it out. Today is the 11th.

LORD KINGSLAND: Yes.

MR JUSTICE SILBER: If I extend your time by -- how long would you like it extended?

LORD KINGSLAND: Well, my Lord, I think in the old days it was, I suspect that your Lordship will probably take about a week to clear up the judgment. I would prefer a month, but if your Lordship were----

MR JUSTICE SILBER: Well, I am very keen to give you----

LORD KINGSLAND: Well, a month would suit me very well, my Lord, put it that way.

MR JUSTICE SILBER: Shall we say, well I will give you to 11th February?

LORD KINGSLAND: 11th February. I am much obliged.

MR JUSTICE SILBER: Nothing is being done on this project at all while this is going on, so I will extend your time to 11th February.

LORD KINGSLAND: I am much obliged, my Lord.

MR JUSTICE SILBER: I am sorry I cannot give you anything more than that, but thank you very much.

LORD KINGSLAND: I am much obliged to your Lordship for hearing me out.

MR JUSTICE SILBER: Yes. I suppose it is the problems with the bomb which has preventing you getting your papers?

LORD KINGSLAND: My chambers are in Breams Building.

MR JUSTICE SILBER: Yes, I know.

LORD KINGSLAND: And the eastern end of Breams Building is blocked and both ends of Chancery Lane are blocked. The Fetter Lane-end of Breams Buildings is blocked.

MR JUSTICE SILBER: There is a lot of activity in behind the Law Courts.

LORD KINGSLAND: The incident is taking place, I think, right in front of the Law Society.

MR JUSTICE SILBER: I see.

LORD KINGSLAND: The chap who has strapped this bomb to himself did so, apparently, at about 6.30 last night, so Chancery Lane has been blocked since 6.30 last night and the police are still trying to persuade him that the Solicitors Complaints Authority is not as dire as he obviously thinks it is.

MR JUSTICE SILBER: One is reassured to know it is not outside the Law Courts. Well, thank you very much indeed for all the help you have given in the case, Lord Kingsland.

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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 >> Smith, R (On The Application Of) v Secretary Of State For Environment, Transport & Regions & Ors [2001] EWHC Admin 1170 (19th December, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/1170.html Cite as: [2001] EWHC Admin 1170

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 December 2001