Baker, R (on the application of) v Bath and North East Somerset Council

For environmental impact assessment purposes, a change or extension to an existing project must be considered in the context of the development as a whole. It is insufficient to examine only the physical modification and to disregard its cumulative or operational effects.

Domestic implementing regulations must, so far as possible, be interpreted consistently with the Directive. A domestic provision which unlawfully restricts the required assessment may be disapplied. Screening safeguards are inadequate where members of the public are not informed of the possibility of seeking a direction requiring assessment.

The claimant sought judicial review of three planning permissions granted to Hinton Organics (Wessex) Ltd for changes to waste-management operations at two sites near Bristol. The permissions involved intensified use, additional waste materials, increased vehicle movements and the transfer of partly composted waste to a smaller site.

The central issue was whether the Town and Country Planning (Environmental Impact Assessment (England and Wales)) Regulations 1999 properly implemented Directive 85/337/EC, particularly the provisions governing changes or extensions to Annex II projects and the consideration of cumulative environmental effects.

1. The claim succeeded. All three planning permissions were quashed.
2. Directive 85/337/EC requires an overall assessment of the environmental impact of a project or its modification. The competent authority must consider the effect of the change or extension on the development as a whole, including cumulative effects and the consequences of using or operating the modified development.
3. Schedule 2, paragraph 13, column 2 of the 1999 Regulations purported to require the thresholds and criteria to be applied to the change or extension alone. That limitation was inconsistent with the language and purpose of the Directive. The court was therefore entitled to disapply the offending words.
4. The existence of regulation 4(8), enabling the Secretary of State to direct that development is EIA development, did not cure the defect. The scheme did not adequately inform affected members of the public of that possibility, nor ensure that the issue was resolved before planning permission was granted.
5. The approach was supported by Kraaijeveld BV v A Body in South Holland, [1997] All ER EC 134, Abraham v Wallonne, C-2/07, and Ecologistas en Accion-Coda v Ayuntamiento de Madrid, C-142/07. The court applied the conforming-interpretation approach described in Pfeiffer and Ors v Deutsches Rotes Kreuz and Ors, [2005] IRLR 137 and [2005] ICR 1307.
6. Berkeley v The Secretary of State for Environment, Transport and Regions, [2001] 3 Crim LR 11, did not establish that the existing procedural safeguards were sufficient after the Directive had been amended to include public access-to-review requirements.