Gillespie v Secretary of State & Anor

When deciding whether a Schedule 2 development is likely to have significant environmental effects, the decision-maker must focus on the likely effects of the development and must not rely on special or elaborate remediation measures to make otherwise significant effects appear insignificant. The adequacy and effectiveness of such measures should instead be assessed through the environmental impact assessment process.

Standard controls and ordinary conditions may be taken into account where they form part of the normal regulatory context and the uncertainty is bounded. The judgment as to whether an assessment is required remains subject to Wednesbury review. A decision-maker need not give detailed reasons for concluding that an assessment is unnecessary where the conclusion and the material underlying it permit effective judicial review.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s grant of planning permission for the redevelopment of a contaminated former gasworks site. The proposal comprised 407 residential units, a community health centre and associated works.

The site was substantially contaminated. The Secretary of State accepted a remediation strategy, imposed a condition requiring further investigation and detailed remediation measures, and concluded that an environmental impact assessment was unnecessary under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.

The central issues were whether that conclusion unlawfully took the proposed remediation measures into account, whether the remaining uncertainty required an assessment, and whether adequate reasons had been given.

The claim succeeded and the Secretary of State’s decision was quashed on the first ground.

1. Relevant test. Whether a Schedule 2 development is likely to have significant environmental effects is a matter for the decision-maker, subject to Wednesbury review. The decision-maker may also determine whether sufficient information is available to make that judgment.
2. Remediation measures. Without effective remediation, the contamination on the site was plainly capable of producing significant environmental effects. The Secretary of State’s conclusion that such effects were unlikely necessarily depended partly on an assessment that the proposed remediation would prevent them. Following British Telecommunications Plc and Others v Gloucester City Council [2001] EWHC Admin 1001 and R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin), that approach was unlawful. The EIA process requires the likely effects and the measures proposed to avoid, reduce or remedy them to be considered separately, so that the public can assess the adequacy of the measures.
3. Limits of the principle. Standard controls and ordinary conditions may be relevant where they represent normal regulation of development. The present case involved special and extensive remediation measures. Their effectiveness had to be assessed within the EIA process. The uncertainty was nevertheless bounded: the Secretary of State was entitled to proceed on the information available, and the further investigation required by condition VI did not itself make the decision irrational.
4. Reasons. The reasons challenge failed. It was sufficient to state that the development was unlikely to cause significant environmental effects. There was no express duty in the regulations or Directive to give fuller reasons, and effective judicial review remained possible. R v Secretary of State for the Environment, Transport and the Regions, ex parte Marson [1998] 3 PLR 90 remained persuasive notwithstanding the effect of Berkeley v Secretary of State for the Environment [2001] 2 AC 603 on part of its reasoning.

The decision was quashed for the error concerning remediation measures.