Hockley v Essex County Council

Environmental impact assessment screening is an essentially fact-finding exercise involving judgment on the likelihood and significance of environmental effects. The precautionary approach informs that exercise, but review remains subject to ordinary Wednesbury principles. The decision-maker must consider the project as a whole, relevant cumulative effects and any integral stages of a larger scheme. Likelihood means a serious possibility.

A challenge based on omitted cumulative effects requires objective evidence of a potentially significant effect attributable at least in part to the project. Speculation about uncertain future development is insufficient. Under section 38(6) of the Planning and Compensation Act 2004, departure from development-plan policy is lawful where the conflict is acknowledged and clear, sound reasons show that material considerations justify permission.

John and Sandra Hockley sought judicial review of Essex County Council’s June 2012 planning permission for a waste transfer station near their home. They alleged that the proposal required environmental impact assessment and that the Council had unlawfully departed from Policy GD8 of the Uttlesford Local Plan.

The claim had been joined to an earlier challenge concerning a related resource management centre, but that earlier permission had been quashed after the Council submitted to judgment. The issues were whether the screening opinion unlawfully omitted cumulative effects or involved project splitting, and whether the reasons for departing from Policy GD8 were legally adequate.

The claim was dismissed.

Environmental impact assessment

1. The court held that screening is an essentially fact-finding exercise requiring judgment on the likelihood and significance of environmental effects. The precautionary approach informs screening, but the court must apply ordinary public law principles and the conventional Wednesbury standard. The court relied particularly on R. (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114 and R. (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869.
2. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the screening decision-maker had to consider the project in its entirety, development which might combine with it to cause significant effects, and any integral section or stage of a larger project. The relevant likelihood threshold was a serious possibility, as explained in R. (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157.
3. The screening opinion was sufficiently informed and reasoned. It identified the relevant Schedule 2 thresholds and assessed discharges, emissions, noise, traffic and odour. The correct annual throughput was 29,400 tonnes, not double that figure, because throughput meant the quantity passing through the facility.
4. The waste transfer station was a stand-alone project. Future junction improvements, a possible civic amenity site and other local developments were not shown by objective evidence to be capable of producing significant cumulative effects attributable in part to this proposal. It was therefore neither necessary nor appropriate to speculate about them. The claimants had not established an unlawful omission or project splitting.

Departure from Policy GD8

Section 38(6) of the Planning and Compensation Act 2004 required the application to be determined in accordance with the development plan unless material considerations indicated otherwise. The conflict with Policy GD8 was expressly acknowledged and placed in the planning balance. The allocation for a civic amenity site and depot did not prohibit every other waste use. The Council was entitled to regard the proposed waste transfer station as a similar use, but permission was ultimately justified on the proposal’s own merits, having regard to its effects, benefits and conditions. The reasons were clear and lawful.