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R(Loader) v Secretary of State for Communities & Local Government [2011] EWHC 2010 (Admin)

DATE: 29 Jul 2011

The High Court (Mr Justice Lloyd Jones) in R(Loader) v Secretary of State for Communities & Local Government [2011] EWHC 2010 (Admin) held that the appropriate test of “significant effects on the environment” under the EIA Directive is not that set out in the Commission’s Guidance on EIA Screening (June 2001), namely whether any effect “…is one that is of sufficient importance that it ought to be considered and have an influence on the development consent decision.” The learned Judge said “I am unable to accept that the Commission Guidance intended to substitute a test of general application for a case-by-case expert evaluation”.

The learned Judge expressed agreement with the obiter remarks of the Court of Appeal in R (Bateman) v South Cambridgeshire D.C. [2011] EWCA Civ. 157 on this issue. The learned Judge said:

“43. … the approach for which the Claimant contends is erroneous in that it would transfer the focus from whether a project was likely to have significant effects on the environment to whether the effect is one that it is relevant to consider and which might influence the development consent decision. A wide range of matters may be relevant to the latter decision and might influence it notwithstanding that they are not capable of having significant effects on the environment. I do not read the Commission Guidance as intended to require such an approach.

44. Secondly, the Claimant’s submission would have the effect of substituting a new and much lower test for that set out in the Directive and the Regulations. As Moore-Bick L.J. observed in Bateman, if this submission were correct an EIA would be required in virtually all cases in which a development might possibly have some effects on the environment. The EIA Directive was drafted so as only to apply where projects were likely to have significant effects on the environment (see Recital (1) and Article 2(1)). It was not intended that EIA be required in respect of any development that might have any effect on the environment. The fact that the EIA Directive has been said to have a wide scope and broad purpose does not mean that it is permissible to re-cast the test laid down in the Directive and to substitute the lesser test for which the Claimant contends.

45. Thirdly, I accept the submission of Mr Maurici that it would not be appropriate for the court to try to lay down a single defined test of “significant effects on the environment” for application in all cases. I note that the Commission and the Court of Justice have not attempted to do so. Furthermore, in Bateman Moore-Bick LJ considered that one should not attempt to place too rigid an interpretation on the word “significant” in this context. For my part I doubt that it would be possible to do so without departing from the approach adopted in the Directive. The test of “significant effects on the environment” is intended to confer discretion on expert decision-makers to take decisions on a case-by-case basis. There is no single, hard-edged test appropriate for application in all cases.”

The High Court also rejected a challenge to the reasons given for PINS screening decision in that case.

James Maurici appeared for the Secretary of State.