Horner v Lancashire County Council & Anor

On an oral renewal of an application for permission to appeal, the Court of Appeal may grant permission on an additional point where there are sufficient grounds for the appeal to proceed. Relevant considerations included an existing grant of permission on a related issue and potential anomalies arising from the lower court’s interpretation of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

The judgment granted permission only. It did not determine whether the proposed development required an Environmental Impact Assessment.

The applicant, who farmed land near a cement works, sought judicial review of Lancashire County Council’s view that a proposed extension involving apparatus for using a different fuel did not require an Environmental Impact Assessment under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Ouseley J refused judicial review by an order dated 19 July 2005.

Buxton LJ granted permission to appeal on one ground when considering the application on paper, but refused permission on the remaining grounds. The applicant renewed the application orally in relation to the interpretation of paragraph 13(a) of Schedule 2. The central issue was whether the applicable new-floorspace threshold applied to the proposed extension and whether a storage silo could have qualifying floorspace.

Application granted. Lord Justice Lloyd granted permission to appeal on the additional point concerning the interpretation of paragraph 13(a) of Schedule 2. Permission had already been granted on another ground by Buxton LJ.

1. The underlying judicial review concerned proposed development at a cement works involving new apparatus intended to permit the use of a different fuel. The local planning authority considered that an Environmental Impact Assessment was unnecessary, and Ouseley J upheld that view.
2. The relevant statutory scheme was identified in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Development falls within Schedule 2 where it matches a description in column 1 and the applicable threshold or criterion in column 2 is exceeded or met. The relevant cement-manufacturing entry concerned new floorspace exceeding 1,000 square metres.
3. Paragraph 13(a) addressed a change to or extension of listed development which might have significant adverse environmental effects. The corresponding thresholds and criteria applied to the change or extension, rather than to the development as changed or extended. The lower court held that the proposed silo did not exceed the floorspace threshold. Buxton LJ considered that conclusion correct and referred to Edwards v Cemex [2006] EWCA Civ 877.
4. Although Lloyd LJ expressed hesitation, the potential anomalies identified in the proposed interpretation, together with the existing permission on a related issue, provided sufficient grounds for the appeal to proceed. The order granted permission to appeal on the paragraph 13(a) issue. The substantive question whether an Environmental Impact Assessment was required was left for the appeal.

1. Court of Appeal (Civil Division): Buxton LJ granted permission to appeal on paper on one ground and refused permission on the others. On oral renewal, Lloyd LJ granted permission on the additional issue concerning paragraph 13(a) of Schedule 2.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Ouseley J refused judicial review by order dated 19 July 2005.