Smout v The Welsh Ministers & Ors

Where domestic legislation does not fully transpose an environmental assessment directive, the decision-maker must still consider and apply the directive where its provisions are sufficiently precise. A decision that an environmental impact assessment is unnecessary may be adequately reasoned by reading the decision together with contextual material and information disclosed to interested parties. The assessment must address the overall effect of a proposed modification, but the need to revisit an existing planning permission depends on the nature and practical effect of the modification. A court reviewing a planning decision under section 288 of the Town and Country Planning Act 1990 will not interfere with clear factual findings by an inspector absent an error of law.

The applicant sought under section 288 of the Town and Country Planning Act 1990 to quash Welsh Ministers’ decisions confirming modification orders relating to planning permissions for landfill operations at Hafod Quarry. The challenge alleged inadequate transposition and application of the environmental impact assessment directive, inadequate reasons, failure to reconsider the principle of development, non-compliance with planning conditions, and errors concerning phasing. The modification orders restricted the area in which the existing permissions could operate, including by excluding part of a designated conservation site.

1. The application to quash the modification orders was dismissed. The Welsh Ministers had not ignored the environmental impact assessment directive. Although the domestic regulations did not specifically address modification orders, the Ministers considered the directive, the likely environmental effects, the screening material, relevant advice and the effect of restricting the existing permissions.
2. Domestic law must, so far as possible, be interpreted in the light of an applicable directive. Individuals may rely against the state on provisions which are unconditional and sufficiently precise where the directive has not been properly implemented or applied. The court applied that principle in assessing the legality of the Ministers’ decision.
3. A determination that an environmental impact assessment is unnecessary need not itself contain a full statement of reasons. Under R (Mellor) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1201, the determination may be read with material already disclosed to interested parties and with further information supplied on request. The letters, inquiry material, screening opinion and consultation responses adequately explained the decision.
4. The court distinguished R (Baker) v Bath and North East Somerset Council [2009] EWHC 595 (Admin). The present modifications restricted an existing consent rather than intensifying the development, and an earlier assessment and further screening exercise had been undertaken. There was therefore no legal requirement to revisit the principle of development or reconsider the original permissions in the same manner.
5. The inspector had made clear findings that conditions 6 and 7 had been satisfied and had addressed the phasing issue. Those findings were supported by the inquiry evidence and could not be disturbed under section 288 merely because the applicant challenged the factual conclusions. The decision-making process was reasoned and proportionate and disclosed no error of law.