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R (Burridge) v Breckland District Council and Greenshoots Energy Ltd [2013] EWCA Civ 228

DATE: 22 Apr 2013

John Hobson QC (Respondent) and Alex Goodman (Interested Party) have successfully resisted an appeal seeking to quash planning permission for a biomass renewable energy plant.

The Court of Appeal in R (Burridge) v Breckland District Council and Greenshoots Energy Ltd [2013] EWCA Civ 228 held that the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 had to be read so as to conform with the EIA Directive such that separate applications for two parts of a single project should have been treated as a single “application” for the purposes of regulation 7. However, a majority (Davis LJ and Warren J) declined to quash the challenged planning permission.

The Council was faced with two applications for planning permission, made on the same day. Regulation 7 of the domestic EIA regulations triggers a requirement for a screening opinion to be adopted only where “an application” before a Council exceeds the thresholds in Schedules 1 and 2 so as to be considered “EIA development”.  The Court held that the Council was wrong to consider each application individually (so that EIA was not triggered) in circumstances where considering the two applications together as a single application would have resulted in the relevant thresholds being exceeded and EIA being required. Lord Justice Pill held at paragraph [42]:

“that the two applications comprised a single project and the applications comprised, in the language of regulation 7(1)(b), the "development in question". It was necessary to take the applications into account together when deciding whether a screening opinion was necessary. The council cannot, in my judgment, rely on the expression "an" application, in regulation 7, to avoid the screening obligation arising under the Directive and Regulations by dividing a project between more than one application, with one or both applications remaining below the schedule 3 threshold. Albeit in two applications, it was a single project and a single development which crossed the schedule 2 threshold”

On this point Lord Justice Davis (at [79]) and Warren J at [102] substantially agreed.

The second ground of appeal was that a pipeline corridor specified in the application for planning permission as being 10 metres in width over a length of 1.1 km would notionally exceed a developable area of 1 hectare and so fall within the threshold in paragraph 3(b) of Schedule 2 to the EIA Regulations 1999. However, the pipe itself was only 20cm in width and Davis LJ and Warren J held that the ground invoked “unreal technicality”. Pill L.J. declined to decide the issue.

Notwithstanding their conclusion on the first ground, Davis LJ and Warren J declined to quash the planning permission. A screening opinion had been given for an earlier application and concluded that EIA was not required. That opinion was not challenged. The planning permission under challenge related to an application for development which was similar to the earlier development (one component of the development had been re-sited). The Council’s planning officer gave a witness statement to the effect that he had considered whether EIA was required for the application as amended, and had concluded in light of his earlier screening opinion that it was not. He had not reduced his earlier opinion to writing at the time. His reasons were given subsequently in correspondence and through the witness statement. The Judge below had held- and Davis LJ and Warren J agreed- that the process complied with the requirement of the regulations

Davis LJ was also not minded to interfere with the conclusion of the judge had any further screening opinion been called for, it was not arguable that it would have come to any different result and therefore any failing on the part of the council in this regard might also be disregarded.

Davis LJ and Warren J also held that the subsequent decision of the Secretary of State that near-identical applications should be subject to environmental impact assessment did not affect their conclusions. On this point the Court entertained written submissions after draft judgment had been disclosed to counsel.

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