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R (Baker) v Bath and North East Somerset Council and Hinton Organics (Wessex) Limited

DATE: 19 Feb 2009

In a striking oral judgment in R (Baker) v Bath and North East Somerset Council and Hinton Organics (Wessex) Limited Collins J has ruled that part of the 1999 EIA Regulations do not properly implement the EIA Directive. The case concerned two planning permissions which made changes to a composting facility near Queen Charlton, Bristol. The original composting site would now constitute Schedule 2 development, being a waste disposal installation exceeding 0.5h in area (see paragraph 11 of Schedule 2). The relevant applications were for a 'change or extension' to this development and could 'have significant adverse effects on the environment'. As such the applications fell within the first column of paragraph 13 of Schedule 2. However the local planning authority did not subject them to screening because the change/extension did not exceed the 2.1h threshold which, according to the second column of paragraph 13 has to be 'applied to the change or extension (and not to the development as changed or extended)'. Collins J has ruled that the words '(and not to the development as changed or extended)' do not properly implement the relevant EU Directive since the Directive requires there to be consideration of the environmental effect of the changed/extended development as a whole.

The judgment appears to mean that, where an application is made to change/extend existing Schedule 1 or Schedule 2 development and the change/extension may have significant adverse effects on the environment, screening is required, regardless of the smallness of the change/extension.

An appeal is likely.

Richard Langham appeared for the defendant local planning authority

James Maurici appeared for the Secretary of State for Communities and Local Government, an interested party.