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Court of Appeal rules in Loader case

The Court of Appeal today gave judgment in R (Loader) v Secretary of State for Communities and Local Goverment & Ors. [2012] EWCA Civ 869
The case concerned an appeal against the decision of Lloyd-Jones J. ([2011] EWHC 2010 (Admin); [2012] Env. L.R. 8).
The Appellant argued that in screening for EIA the test of likely significant effects on the environment was that set out in Guidance from the European Commission on EIA Screening as a “useful simple check”, 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”.
Pill LJ (with whom Sullivan and Toulson LLJ agreed) said:

“43.        What emerges is that the test to be applied is:
“Is this project likely to have significant effects on the environment?”
That is clear from European and national authority, including the Commission Guidance at B3.4.1.  The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case.  The Commission Guidance recognises the value of national guidance and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment.  Only if there is a manifest error of assessment will the ECJ intervene (Commission v UK). 
The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision.  Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment.  There may be cases where the uncertainties are such that a negative decision cannot be taken.  Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker. 
44.          The criteria in the annexes to the Regulations justify the approach to the question proposed in Circular 02/99, paragraphs 33, 34 and annex A (cited at paragraphs 17 and 18 above).  It is stated, at paragraph 34, that the number of cases of schedule 2 development which are EIA developments will be “a very small proportion of the total number of schedule 2 developments”. 
45.          I do not consider that the reference in the Commission Guidance to a “useful simple check” ... can lead to a conclusion that the test proposed by the appellant is appropriate.  Whether the perceived environmental effect has an influence on the development consent decision is a relevant consideration but cannot in itself answer the question to be posed.  The sentence in the Guidance relied on also requires the decision maker to ask “whether the effect is one that ought to be considered”, an affirmation of the need to answer the question “is this project likely to have significant effects on the environment” posed at B3.4.1 of the Guidance.  The purpose of the checklist is stated to be to help decide whether the effects are likely to be significant.  Establishing that the environmental effect will influence a particular development consent decision may well be a necessary requirement for a decision that development is EIA development but it is not determinative of whether the effects are likely to be significant and “ought to be considered”. 
46.          The proposed test does not accord with the overall purpose and tenor of the procedure initiated by the Directive.  A formal and substantial procedure is contemplated, potentially involving considerable time and resources.  It is contemplated for a limited range of schedule 2 projects, those which are likely to have significant effects on the environment.  To require it to be followed in all cases where the effect would influence the development consent decision would devalue the entire concept.  It is not contemplated, for example, that if the Secretary of State took the view that a proposed house extension might affect the amenity of a neighbour on environmental grounds, and do so decisively, it would for that reason necessarily be EIA development.   I agree with the approach of Moore-Bick LJ in Bateman [[2011] EWCA Civ 157] and with the judge.”

The appeal was dismissed. For a copy of the approved transcript please click here.

James Maurici appeared for the Secretary of State.