Bowen-West v Secretary of State for Communities and Local Government

The sufficiency of an environmental statement remains subject to the orthodox Wednesbury standard of review. A court at first instance cannot replace that standard with a more rigorous proportionality-based test.

For a stand-alone development, the decision-maker must assess the likely significant indirect, secondary and cumulative effects of the development for which permission is sought. A future proposal need not be assessed merely because permission for the current development may enhance its prospects, particularly where the future proposal is separate, lacks sufficient detail and remains subject to consideration on its own merits.

The claimant, a local resident, challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision granting Augean plc permission to dispose of low-level radioactive waste at an existing hazardous-waste landfill site until 31 August 2013.

She alleged that the environmental statement failed to address the indirect, secondary and cumulative effects of a prospective extension of the site and that the reduction in hazardous-waste capacity made future expansion more likely. The Secretary of State had accepted the Inspector’s conclusion that the proposal was stand-alone and that each future application would be considered on its merits.

1. Application dismissed. The claimant’s two grounds of challenge failed.
2. The court was bound by the orthodox approach that the adequacy of an environmental statement is reviewed on Wednesbury principles. The court could not adopt the more rigorous standard proposed by reference to R(Buglife) v Medway Council or Case C-2/07 Abraham and others; any change to the orthodox position was for a higher court.
3. Under regulation 2(1) and regulation 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, read with Schedule 4 Part I paragraph 4, the question was whether the environmental statement contained the information reasonably required to assess the likely significant effects of the development for which permission was sought, including indirect, secondary and cumulative effects.
4. The Inspector and the Secretary of State were entitled to treat the proposal as stand-alone. Unlike the development in Brown v Carlisle City Council, the permitted works could proceed irrespective of any future extension. The possible precedent effect did not require the future proposal to be assessed as part of the present environmental statement. The Secretary of State had considered that effect and was entitled to conclude that each future application would be determined on its merits and the material circumstances existing at the time.
5. The absence of detailed future proposals was a rational and relevant consideration. The decision-maker had asked and answered the correct question, and the decision disclosed no irrationality.
6. The challenge concerning hazardous-waste void space also failed. The Inspector and the Secretary of State were entitled to attach little weight to capacity after 2013. The issue was not a principal controversial issue requiring detailed reasons, nor a main environmental effect required to be included in the environmental statement: South Buckinghamshire DC v Porter (No 2).

The application was dismissed. The claimant was ordered to pay the first defendant’s costs, capped at £5,000. There was no other order as to costs. Permission to appeal was refused.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The application was dismissed and permission to appeal was refused.