PPG11 Ltd, R (on the application of) v Dorset County Council & Anor

Environmental impact assessment is intended to ensure that planning decisions are made with sufficient environmental information and allow effective public participation. The requirements in Part II of Schedule 4 to the Town and Country Planning (Environmental Impact Assessment) Etc. Regulations 1999 need not be considered in a rigid, sequential or wholly compartmentalised manner. A planning authority may take proposed mitigation into account when assessing likely significant effects, particularly where the measures are modest, plainly achievable and uncontroversial. It must, however, have sufficient evidence to make the assessment; post-permission surveys cannot cure a lack of information on an essential issue. A condition requiring further investigation is not necessarily unlawful. The authority must also separately have regard to the strict protection of European protected species under the Conservation (Natural Habitats Etc.) Regulations 1994.

Viridor Waste Management Limited applied to Dorset County Council for permission to convert a worked-out clay quarry into a landfill site. The claimant, an action group, sought judicial review of Dorset’s resolution to grant permission.

It alleged that Dorset had failed to take the environmental information into consideration as required by the 1999 Regulations, because it had relied on mitigation and post-permission surveys without first making a discrete finding about likely significant adverse effects. It also alleged failure to have regard to the Habitats Directive and the 1994 Regulations concerning European protected species.

1. Claim dismissed. Dorset’s planning committee had sufficient material before it to reach a planning judgment that the development was not likely to have significant adverse ecological effects. The committee accepted advice that any effects were likely to be minimal or very slight, independently of the proposed mitigation.
2. The EIA scheme serves both to secure informed decision-making and to promote democratic participation. The adequacy of an Environmental Statement is principally for the planning authority’s judgment. The court intervenes only if that judgment is irrational.
3. Part II of Schedule 4 to the 1999 Regulations does not impose a rigid sequence in which paragraphs 1, 2 and 3 must always be considered separately. The extent to which mitigation may be considered depends on the development and the proposed measures. The Court of Appeal’s decision in Gillespie v First Secretary of State confirmed that there is no artificial separation between the development and remedial measures.
4. Mitigation may be taken into account where it is modest in scope, plainly or easily achievable, or plainly established and uncontroversial. The measures here involved familiar survey techniques and possible limited translocation. They did not amount to the unlawful short-circuiting identified in the earlier cases.
5. A condition requiring further investigation is not necessarily unlawful. It may be a prudent step where the authority already has sufficient information to decide that significant effects are unlikely. It cannot, however, substitute for evidence needed to assess an essential environmental feature.
6. The second ground also failed. Dorset knew of the protection given by regulation 39 of the 1994 Regulations, had regard to the licensing derogation in regulation 44, and rationally provided for compliance. EIA approval and compliance with species-protection legislation are distinct questions.
7. The claim was dismissed. Dorset County Council was awarded its costs, summarily assessed at £22,000. No costs order was sought against the interested party.