Hargreaves v Secretary of State for Communities & Local Government & Ors

At the environmental impact assessment screening stage, the decision-maker may take proposed remedial or mitigatory measures into account when deciding whether a project is likely to have significant environmental effects. It is lawful to conclude that no assessment is required where the measures and their likely effectiveness can be evaluated with sufficient confidence. The position differs where implementation is too uncertain to be assumed. A later Court of Appeal decision on the same screening issue, including its refusal to reopen the issue or refer it to the European Court, was binding. Proposed alternative feeding grounds and protection from dogs were sufficiently evaluable in this case.

The applicant challenged a proposed two-turbine wind farm near environmentally protected sites. The Secretary of State decided that no environmental impact assessment was required and later allowed an appeal against Wyre Borough Council’s refusal of planning permission. The applicant’s challenge under section 288 of the Town and Country Planning Act 1990 was rejected by HHJ Pelling QC in the Administrative Court. Permission to appeal was refused on paper and the applicant renewed the application.

The principal issue was whether proposed mitigation could be considered at the screening stage or only during a full environmental impact assessment. Subsidiary grounds concerned referral back to the Secretary of State and the meaning of likely under the EIA and Habitats Directives.

Application refused. Longmore LJ held that the proposed mitigation could lawfully be considered when making the screening decision.

1. The decision-maker was entitled to take into account the proposed provision of alternative feeding grounds for pink-footed geese and measures to protect those grounds from dogs. Such measures were capable of being readily evaluated, particularly because Natural England and the RSPB were satisfied with them. The conclusion that the project was not likely to have significant environmental effects was therefore not invalidated by considering mitigation.
2. In Lebus v South Cambridgeshire DC [2002] EWHC 2009 (Admin), Sullivan J had taken a more restrictive approach. However, the Court of Appeal had subsequently held in R (Catt) v Brighton Hove Council [2007] EWCA Civ 298 that remedial measures could be considered at screening. That approach was applicable here, subject to the qualification that uncertain ameliorative measures could not simply be assumed to succeed.
3. The later decision in Catt (no 2) [2009] EWCA Civ 1417, which declined an ECJ reference and refused to reopen the issue, bound the judge. Further correspondence from the Commission did not justify a different conclusion. Reliance on CILFIT [1982] ECR 3415 did not alter that position.
4. The remaining grounds were not arguable. Neither the suggested duty of the inspector to refer the issue back to the Secretary of State nor the alleged failure to do so was established. The word likely was an ordinary word, and no error by the inspector or the judge was shown in its use under the EIA and Habitats Directives.

Permission to appeal was refused.

Procedural history

• Court of Appeal (Civil Division): renewed application for permission to appeal refused on 10 February 2012.
• High Court of Justice, Queen’s Bench Division, Administrative Court: HHJ Pelling QC rejected the challenge to the planning permission decision under section 288 of the Town and Country Planning Act 1990.
• Secretary of State: appeal allowed against Wyre Borough Council’s refusal of planning permission.