Bellway Urban Renewal Southern v Gillespie

In an environmental impact assessment screening decision, the decision-maker must assess the whole proposed project, including remedial measures that form an integral part of it. Such measures need not be ignored merely because they mitigate environmental harm. However, a condition requiring future investigation and remediation cannot be treated as a complete answer to likely significant environmental effects. The screening decision must consider the information then available, the particularity and complexity of remediation, its prospects of success, and effects during and after the works. Where material matters remain uncertain, the condition cannot be used as a substitute for the environmental impact assessment procedure under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.

The developer obtained planning permission from the Secretary of State for redevelopment of a contaminated former gasworks site. The proposed scheme included extensive future investigation and remediation, governed by Condition VI. The Secretary of State concluded that no environmental impact assessment was required because the condition would address contamination risks.

Richards J quashed that decision. The developer appealed. The central issue was whether, when screening an urban development project for likely significant environmental effects, the Secretary of State could take account of proposed remedial measures and a condition requiring their later investigation and approval.

1. Appeal dismissed. The court upheld the quashing of the Secretary of State’s planning permission decision, although it rejected the lower court’s categorical approach that remediation measures had to be disregarded at the screening stage.
2. Under Regulations 2 and 4 of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, the Secretary of State had to make a practical judgment about the likely environmental effects of the actual development project. Following the approach in World Wildlife Fund v Autonome Provinz Bozen [2001] 1 CMLR 149, that assessment could include remediation measures forming part of the proposal. The Secretary of State was not required to divide the development and the remediation into separate compartments.
3. That did not permit the Secretary of State to assume that proposed works or a planning condition would succeed. He had to consider the stage and adequacy of investigation, the nature and detail of the remediation scheme, its uncertainties and complexity, its prospects of successful implementation, and adverse effects during remediation as well as the final result.
4. Condition VI required a future detailed investigation to establish the nature and extent of contamination and to devise and approve remediation. The Secretary of State had treated the condition as if it supplied a complete answer to likely significant effects. That assumed successful outcomes despite contingencies which had not yet been resolved. It was an erroneous screening approach.
5. Laws LJ agreed that an environmental impact assessment is required where prospective remedial measures are not plainly established and uncontroversial. Arden LJ added that the relevant question is the nature and likely impact of the remedial measures, rather than the complexity or controversiality of the development as such.

• Court of Appeal (Civil Division). Dismissed the developer’s appeal and upheld the quashing of the Secretary of State’s decision.
• Administrative Court (Richards J, 20 January 2003). Quashed the Secretary of State’s grant of planning permission on the basis that an environmental impact assessment was required.