Case No: C1/2009/1357

Neutral Citation Number: [2009] EWCA Civ 1417

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

(SIR THAYNE FORBES)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 25th November 2009

Before:

LORD JUSTICE RICHARDS

and

LORD JUSTICE PILL
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Between:

The Queen on the application of Catt / Appellant
- and -
Brighton and Hove City Council / Respondent

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(DAR Transcript of

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Mr William Upton (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment

(As Approved by the Court)

Crown Copyright©

SMITH BERNAL WORDWAVE

Lord Justice Richards:

  1. Withdean Stadium in Brighton is an athletics stadium which has also been used since 1988 by Brighton and Hove Albion Football Club for its professional football activities including the playing of home matches. That use has been by virtue of a series of five temporary planning permissions granted by Brighton and Hove City Council pending the establishment of a permanent ground for the club.
  1. The club’s use of the stadium has given rise to a considerable amount of litigation. The permission granted in 2004 was quashed by consent because of the council’s failure to consider whether an environmental impact assessment (“EIA”) was required pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, which gave effect to Council Directive 85/337/EEC. Following a further application for an extension of temporary permission from 2005 to 2008, the council adopted a screening opinion to the effect that an EIA was not required for the proposed development. Permission was thereafter granted in July 2005 subject to certain conditions, which included the club’s entry into a section 106 agreement to secure traffic mitigation measures and other safeguards.
  1. The 2005 permission was then the subject of legal challenge on the ground that the council had acted unlawfully in adopting a screening opinion that an EIA was not required. The claimant was Mr Catt, who lives next to the stadium and had complained, as he still does, about disturbance caused to local residents by activities at the stadium, in particular on football match days. The matters complained of relate to noise, traffic and light pollution. The central argument advanced on Mr Catt’s behalf was that the screening opinion was unlawful because it relied on prospective mitigation measures when considering whether the proposed development was likely to have significant effects on the environment. It was submitted that the correct approach was to consider the development without the mitigation measures and, if the development was likely to have significant effects on the environment, there should be an EIA so as to enable an assessment, with the opportunity for public participation, of whether the mitigation measures would deal sufficiently with those effects.
  1. That challenge failed in the Administrative Court and an appeal to this court was dismissed: see [2007] EWCA Civ 298. Permission to appeal to the House of Lords was subsequently refused on the ground that by that time the matter had become academic since the 2005 permission had expired. The proceedings relating to the 2005 permission are conveniently referred to as Catt 1.
  1. In anticipation of the expiry of the 2005 permission, an application was made for a further temporary permission from 2008 to 2011. The application also covered an additional staff building and an extension to a study support area, neither of which, however, gave rise to use of the buildings by additional numbers of people. In 2008 the council adopted a fresh screening opinion that an EIA was not required and it went on to grant the further permission sought. Save as regards the extension of time to 2011, permission was granted on materially the same conditions as the 2005 permission.
  1. Mr Catt has challenged the 2008 permission, contending that it too was based on an unlawful screening opinion. The unlawfulness is alleged to consist in: 1) taking into account mitigation measures when deciding whether the proposed development was likely to have significant effects on the environment; and 2) failing to take into account the cumulative impact of other activities at the stadium and of the fact that this is the latest of a series of temporary permissions. Mr Catt seeks permission to apply for judicial review and a reference for a preliminary ruling under Article 234 of the EC treaty. Those applications were refused by Sir Thayne Forbes, sitting as a deputy High Court judge. An application for permission to appeal to this court was refused by Sullivan LJ on the papers. The application has been renewed orally before us today.
  1. The main issue is whether it was lawful for the council to take into account mitigation measures when deciding whether an EIA was required. An obvious obstacle in the applicant’s path is the decision in Catt 1 in which this court reached a clear-cut view that it was lawful in the circumstances for the council to take the relevant mitigation measures into account when deciding whether an EIA was required. Such factual differences as exist between the 2005 screening opinion and the 2008 screening opinion are clearly insufficient to warrant any different analysis or conclusion on that issue.
  1. The leading judgment in Catt 1 was given by Pill LJ, with whom the other members of the court agreed. In his judgment he reviewed the authorities including Bellway Urban Renewal Southern v Gillespie [2003] 2 P&CR 16, World Wildlife Fund & Ors v Autonome Provinz Bozen & Ors [2001] 1 CMLR 149 and R (Jones) v Mansfield District Council [2003] EWCA Civ 1408. He stressed that, in deciding whether an EIA is necessary, an examination of the actual characteristics of the project is required and that to consider the proposed development shorn of remedial measures incorporated into it would be to ignore the actual characteristics of some projects. He said that in the instant case it would be ludicrous to ignore conditions imposed as to the frequency of football matches, the days on which they might be played and the music which might accompany them. Similarly with traffic management measures, in considering the effect of the additional capacity of the stadium, the council were not required to shut their eyes to the known effect of the existing development including studies of the movements involved, the monitoring scheme operated by the club, the extent of parking on match days as compared with non-match days or studies on the number of additional cars likely to be approaching the stadium by reason of its increased capacity and the continuing role of the monitoring scheme in the new situation. He contrasted the case with that of Gillespie where the uncertainties, whether inherent or sought to be resolved by conditions, were such that their favourable implementation could not be assumed from the screening opinion as formed. He repeated what he had said in Gillespie to the effect that the decision-maker is not “obliged to shut his eyes to the remedial measures submitted as part of the planning proposal” or to put them into a separate compartment, and he did not understand Laws LJ in Gillespie to have been asserting that remedial measures could be taken into account only when they were “uncontroversial”. He concluded that “when forming a screening opinion, the Council were not required to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative or remedial measures” (paragraph 37), and that the 2005 screening opinion was lawful.
  1. There is, as it seems to me, nothing in the subsequent case law to cast doubt on the legal principles on which the decision in Catt 1 was based. The decision itself was followed by the Court of Appeal in refusing permission for a challenge to proceed in R (Dicken & Ors) v Aylesbury Vale DC & Anr [2007] EWCA Civ 851, another screening opinion case.
  1. The case for the applicant, however, is that Catt 1 is out of line with previous domestic and EU case law and guidance and that there is a real issue as to its correctness. The point is said to affect a number of other pending cases. Mr Upton submits that the point calls for a reference to the European Court of Justice, asking whether it is ever permissible to have regard to mitigation measures when considering whether a development is likely to have significant environmental effects so as to require an EIA and, if so, in what circumstances this would be so. The answer to those questions, it is submitted, is not acte clair. This court is asked either to make an immediate reference or at least to grant permission to apply for judicial review on the basis that it is conceivable that a reference will be required in order to resolve the issues in the case.
  1. It is to be noted that no reference was sought from the Court of Appeal in Catt 1, though it is tolerably clear from the judgments that a reference would have been refused if sought; and the opportunity to seek a reference from the House of Lords did not arise because the appeal had by that stage become academic.
  1. The application for a reference this time round is based essentially on correspondence between the claimant’s solicitors and the European Commission. On 4 September 2007 the claimant’s solicitors, who were also solicitors for the claimant in Dicken, wrote a letter of complaint to the Commission about the approach of planning authorities and the decisions of the Court of Appeal in relation to the taking into account of mitigation measures when deciding whether an EIA is required. On 30 January 2008 the Commission replied, stating that it had opened a complaint against the United Kingdom and that the points raised by the claimant’s solicitors had been registered and would be considered in the light of the applicable community law. On 16 June 2009 the Commission provided an update in these terms:

“We raised the issue of the consideration of mitigation measures at the screening stage, where such measures are not integral to the project concerned, with the UK authorities directly. In response the UK authorities confirmed that they are seeking to provide clarification on the issue under a new Circular and accompanying guidance to be published, we would be informed, in the near future. The Commission has requested that the UK authorities provide a copy of the Circular and accompanying guidance once it is published.

As noted previously, whilst the Commission assesses the extent to which it considers that obligations under EC legislation have been complied with, the final interpretation of such legislation is given by the European Court of Justice. As a result, the Commission welcomes any interpretation of obligations under EU legislation, in this case the EIA Directive, in view of the assistance this may offer to the competent authorities in the member states on the practical application of the Directive.

Given the difficulties to which this issue has given rise in various cases in the UK courts to which you have drawn our attention, any interpretation by the court would be particularly useful. The Commission will not actively pursue infringement proceedings when a member state is aware of a problem and is seeking to address it: once the Circular and guidance is available, the Commission will be in a position to assess it in the light of the requirements of the EIA Directive. On the other hand the Commission recognises that inconsistencies may arise in the approach taken by the national courts in domestic cases and what the UK authorities proposes by way of guidance, and hence the value of a definitive ruling from the European Court of Justice to provide a clear interpretation for such cases in the future.”

  1. Sir Thayne Forbes considered that very little weight should be given to the Commission’s response. Mr Upton submits that that was an error on the part of the judge. He asserts in his written skeleton argument that “the judge should have attached significant weight to the Commission’s position that mitigation measures should not be considered at the screening stage and that infringement proceedings had been commenced against the UK for a breach of the law as a result of the decision in Catt 1”. As I read the correspondence, however, the Commission has adopted no such position as suggested by Mr Upton; and whilst the Commission has opened a complaint against the United Kingdom, infringement proceedings have not been pursued. In the correspondence the Commission refers to the difficulties to which the issue has given rise in cases in the UK courts and refers to the value of a definitive ruling from the ECJ to provide a clear interpretation for such cases in the future, but it does not engage with the factual differences between the various cases in the UK courts or express any view on the correctness of the actual decisions in Catt 1 and Dicken.