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

For environmental impact assessment scoping, the project is ordinarily the development for which authorisation is sought. A proposal does not become part of a larger prospective scheme merely because the developer intends a later extension.

Whether a future proposal produces an indirect, secondary or cumulative effect of the current development is a fact-sensitive evaluative question under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. There is no rigid rule that treats the effects of every intended enlargement as cumulative. The decision-maker may take account of the proposals’ independence, integration, detail and practical effect. A precedent effect alone does not require the future scheme to be assessed with the current proposal.

The appellant, a local resident, challenged the Secretary of State’s grant of planning permission to Augean plc for the disposal of low-level radioactive waste at an existing hazardous-waste landfill. The permission ran only until the expiry of the existing permission in August 2013.

Augean had also indicated that it might seek a later, larger extension of the site to 2026. The appellant contended that the environmental statement for the current application had to assess that prospective scheme as part of the project, or as an indirect, secondary or cumulative effect.

His Honour Judge Stephen Stewart QC, sitting in the Administrative Court, dismissed the appellant’s application under section 288. The appeal raised the proper scope of environmental impact assessment and the intensity of judicial review of the Secretary of State’s assessment.

1. Appeal dismissed. The July 2009 proposal was the relevant project. It was capable of proceeding independently and was therefore a stand-alone proposal, rather than an integrated part of the possible larger development to 2026.

2. Under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, whether later proposals amount to indirect, secondary or cumulative effects of the current development is a question of fact and evaluative judgment. The statutory language, including the requirement for information reasonably required to assess likely significant effects, did not support a rigid rule requiring every intended replacement or enlargement to be assessed with the present proposal.

3. The Secretary of State was entitled to rely on the lack of settled detail for the future scheme, the current proposal’s independence, and the fact that a later application would itself require environmental impact assessment. The accepted precedent effect of permitting low-level radioactive waste at the site did not determine a future application or frustrate the purpose of the Directive. The court distinguished the integrated development considered in Brown v Carlisle City Council [2010] EWCA Civ 523.

4. The Secretary of State had not made a Wednesbury error. His conclusion was also correct on the facts. The discussion of whether European Union law required a more intensive or proportionate review was unnecessary to the result; in any event, the court saw no proportionality issue in a fact-finding exercise.

5. No reference to the Court of Justice was required. There was no unresolved legal question requiring its assistance.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal: [2012] EWCA Civ 321.
• Administrative Court, Queen’s Bench Division: His Honour Judge Stephen Stewart QC dismissed the appellant’s application under section 288 to quash the Secretary of State’s planning decision on 3 November 2011.