Birch, R (on the application of) v Barnsley Metropolitan Borough Council

For Schedule 2 development, an EIA screening opinion must assess likely significant environmental effects by reference to the development’s nature, size and location, including cumulative effects with other development. Where application documents show that a related operation is integral to the proposal, it cannot be ignored merely because its planning status is uncertain. It may be left out only where adequate conditions ensure that the operation will not amount to development. A planning authority cannot defer the issue and rely on later enforcement. The precautionary principle requires controls to be identified and tested at the outset. A quality protocol not incorporated into the permission cannot be treated as determinative.

Planning permission was granted for a green-waste composting facility. The permission incorporated documents describing delivery, stockpiling, processing and later spreading of compost on identified land. The screening opinion treated the proposal as outside Schedule 2 and did not assess the cumulative effects of spreading.

On judicial review, the High Court, in R (Birch) v Barnsley Metropolitan Borough Council and Eric Danforth [2010] EWHC 416 (Admin), quashed the permission. The appeal concerned whether spreading could be disregarded as a possible agricultural use, whether reliance could be placed on legality and enforcement powers, and whether the screening opinion adequately assessed likely environmental effects.

1. The appeal was dismissed. The Court of Appeal upheld the conclusion that the planning permission had to be quashed.
2. The application fell within paragraph 11(b) of Schedule 2 to the Town and Country Planning (Environmental Assessment) Regulations 1999. The proposed composting facility occupied 1.4 hectares, exceeding the 0.5-hectare threshold, even without counting the spreading areas. The screening opinion was therefore materially mistaken about both the nature and size of the development.
3. Under Regulation 2 and the selection criteria in Schedule 3, the authority had to consider whether the development was likely to have significant environmental effects, including cumulative effects with other development. The application documents made clear that spreading the compost was part of the proposal. It could be ignored only if the authority could be confident that conditions would ensure that all material to be spread had ceased to be waste.
4. Section 55(2)(e) of the Town and Country Planning Act 1990 meant that spreading material which had ceased to be waste would be an agricultural use rather than development. But no condition prescribed a minimum quality standard. The Environment Agency’s Quality Protocol postdated the screening opinion and had not been incorporated into the permission. It was relevant, but not determinative.
5. The authority could not adopt a wait-and-see approach and rely on enforcement if unlawful development occurred. That approach was contrary to the precautionary principle underlying Directive 85/337/EC. An EIA was required so that necessary controls could be identified and tested at the outset. The Court relied on R (Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin) and Bellway v Gillespie [2003] EWCA Civ 400. Lord Justices Etherton and Mummery agreed with Lord Justice Sullivan. The order was: appeal dismissed.

1. Court of Appeal (Civil Division): Appeal dismissed. The order below was upheld.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: In R (Birch) v Barnsley Metropolitan Borough Council and Eric Danforth [2010] EWHC 416 (Admin), judicial review was allowed and the planning permission was quashed.