Smout v Welsh Ministers and Wrexham CBC

Where a modification order changes existing planning permissions, the order is a distinct project for environmental-impact-assessment purposes. The decision-maker must assess the environmental difference made by the changes, including their cumulative consequences. It need not reopen the environmental effects of the development already authorised by the parent permissions.

An order which removes permitted operations from a protected area does not itself grant landfill permission or release conditions attached to the original permissions. Restrictions on the sequence of development must be imposed by a planning condition. They cannot be derived merely from an incorporated phasing plan or environmental statement.

The appellant challenged two orders made by the Welsh Ministers under Town and Country Planning Act 1990, modifying landfill planning permissions at Hafod Quarry. The orders excluded a special area of conservation containing great crested newts from the permitted landfill site.

HHJ Farmer QC, sitting in the Administrative Court, dismissed the appellant’s application under section 288 to quash the orders. The appellant appealed, contending principally that the Ministers should have required an environmental impact assessment of the wider landfill and mineral-extraction scheme, and that the permissions could no longer lawfully be implemented because of the newts, the phased-development plan and the restoration concept plan.

The central issue was whether the modification orders required a fresh assessment of the original development or only of the environmental consequences of the modifications.

1. Appeal dismissed. Laws LJ, with whom Pitchford LJ and Lloyd Jones J agreed, held that the orders were development consents for a distinct project under the Environmental Impact Assessment Council Directive 85/337/EC. Although the Directive had not, for the purposes of the appeal, been transposed so as to govern section 97 modification orders, that did not itself invalidate the orders. Its sufficiently precise provisions could instead be relied upon directly to test their legality.
2. The relevant project comprised only the changes made by the modification orders. The orders removed land from the authorised landfill and mineral operations; they granted no permission for landfill in any new place. The Ministers therefore had to ask what environmental difference the modifications made to the existing scheme. They were not required to revisit the effects of the original permissions. The requirement to consider cumulative effects was consistent with that approach, because it concerned the cumulative consequences of the changes.
3. The Ministers asked that correct question and gave adequate reasons for concluding that an environmental impact assessment was unnecessary. The modifications excluded tipping and mineral extraction from the protected area, did not increase other identified effects, and would probably reduce environmental effects.
4. Condition 7 of the permissions was fulfilled in the particular circumstances. It did not require the removal of newts which remained within the south-west corner preserved as a nature reserve. In any event, the appeal against modification orders was an impermissible and belated means of challenging the 2001 confirmation that preconditions had been met or the 2006 commencement of works.
5. No condition required the development phases to proceed alphabetically. An incorporated plan or environmental statement could not impose that restriction without an express planning condition. Likewise, the restoration concept plan did not itself impose a binding restoration condition; condition 29 allowed restoration details for each phase to be approved. The further grounds, which assumed that the orders re-authorised or comprehensively reconfigured landfill operations, consequently failed.

• Court of Appeal (Civil Division) — appeal dismissed: [2011] EWCA Civ 1750.
• Administrative Court, High Court of Justice — HHJ Farmer QC dismissed the application under section 288 of the Town and Country Planning Act 1990 to quash the modification orders.