Horner, R (on the application of) v Lancashire County Council & Anor

For Schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, the prescribed threshold is the starting point. “Floorspace” is construed broadly and may include the measurable base or floor area of a non-conventional structure. A court cannot replace a threshold with a judge-made default case-by-case screening mechanism merely because the threshold appears ill-suited. BPEO is an important but non-overriding planning consideration, not a precondition to permission. A reviewing court may consider whether an omission could have made a difference, subject to Wednesbury constraints. The appeal was dismissed.

Mrs Horner appealed against Ouseley J’s order of 19 July 2005, which upheld Lancashire County Council’s grant of planning permission to Castle Cement Ltd for machinery, a storage silo and associated equipment to handle animal waste derived fuel at Kiln 7.

She alleged that the Council had failed to undertake, or screen for the need for, an environmental impact assessment and had failed to consider the best practicable environmental option under the waste-management framework. The central questions were whether the proposal fell within the Schedule 2 threshold based on “floorspace”, whether the Council could be required to undertake a case-by-case assessment despite that threshold, and whether any failure to consider BPEO invalidated the permission.

Auld LJ gave the leading judgment, with Sedley and Hughes LJJ agreeing. The appeal was dismissed.

1. EIA threshold. The meaning of “floorspace” in Class 13(a) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 should be interpreted broadly in light of the environmental protection objective of the EIA Directive. It is not confined to conventional floorspace in an ordinary building. The measurable base or floor area of the proposed silo was capable of being floorspace. Whether the threshold was met on the facts was a matter of fact and degree. The Judge’s conclusion was within the range of reasonable decisions and was not irrational or otherwise unlawful.
2. No additional default screening mechanism. The Regulations lawfully used thresholds and criteria as part of the Directive’s dual system. The Court could not disregard the 1,000 square metre threshold and create a general obligation on local planning authorities to screen every Schedule 2 proposal whenever the threshold appeared inappropriate. That would undermine the structure of the Regulations. The available case-by-case safeguards included development in a sensitive area and a direction by the Secretary of State under regulation 4(8). Sedley LJ added that where no floorspace was involved at all, resort to the Directive might be legitimate, but the default process otherwise lay in the Secretary of State’s power.
3. BPEO. BPEO is an important planning consideration, but it is neither a precondition to permission nor necessarily overriding. The intensity of consideration required on an individual application depends, in particular, on the regional or local waste-management plan and the practical resources available to the authority. A full BPEO evaluation is not normally required on an individual application. The Judge was entitled to conclude that the Council had considered the relevant waste objectives and that a more specific BPEO exercise would not have revealed any point of real practical significance or altered the result.
4. Process and discretion. An EIA is a precondition to permission and has both an evidential and public-participation purpose. BPEO does not have that dual procedural role. It was therefore open to the Judge, subject to Wednesbury constraints, to assess whether any inadequacy in considering BPEO could have made a difference. There was no need to decide the contingent EIA discretion issue. The Court expressed reservations about applying Berkeley too broadly, agreeing that its observations required contextual care. The Judge’s contingent refusal of relief on the BPEO ground was not irrational.

1. Court of Appeal (Civil Division) dismissed Mrs Horner’s appeal on both the EIA and BPEO grounds.
2. High Court, Administrative Court Ouseley J, on 19 July 2005, upheld Lancashire County Council’s planning permission.