Court of Appeal downplays Aarhus

4 March 2013 by

_66025376_3166618Evans, R (o.t.a of) Secretary of State for Communities and Local Government [2013] EWCA Civ 114 – read judgment

There have been important pronouncements over the years by the Aarhus Compliance Committee (ACC) about whether the UK planning system complies with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). See my post here for the most important ones, and more are likely to follow shortly (see here). The interest in this domestic planning case is in how the Court of Appeal dealt with those pronouncements, where there is domestic case law going the other way.

The underlying challenge was to a decision by the Secretary of State that a proposed development by Persimmon Homes was not likely to have significant effects on the environment – in the jargon, a “screening” decision. The proposal site is near Sudbury, near a Grade 1 listed building (Abbas Hall) and in a valley associated with the 18th painter Thomas Gainsborough; the objector lives nearby and is chairman of the local residents association. The SoS’s decision meant that the proposal was not an “EIA development”  i.e. did not need a formal Environmental Impact Assessment before it could be determined. He reached that decision because

the location of the development, largely shielded by a bowl in the landscape and next to an existing housing development, together with the wider absorption capacity of open rolling hills around the site, mean that the impact of the development would not be of sufficient magnitude to be likely to have a significant effect on the environment.

The question therefore arose – on what legal basis could an objector challenge such a screening decision? Previous cases suggested that the assessment of the significance of an impact or impacts on the environment was essentially a fact-finding exercise which requires the exercise of judgment on the issues of “likelihood” and “significance” – and because the word “significant” requires the exercise of judgment on planning issues and consistency of such judgments, the function is “one for which the courts are ill-equipped”. The Court said that this was particularly so where the issue is the visual impact of a development on a site, and the relevant officer, unlike the court, has visited the site and used his expertise in assessing it.

The Secretary of State argued (and again domestic case law supported him) that the proper test was the – very restrictive – Wednesbury test – in shorthand, one could only challenge it if the decision were irrational.

The objector’s contention was that this was wrong. The judgment suggests that counsel for the objector did not pin his colours to the mast as to what the true test was, but the gist can be gained from the following extract; counsel submitted that

 more intensive scrutiny was required, but he did not make a positive submission as to what that would be. His task, he repeatedly said, was to show that the matter was not clear and that a reference to the CJEU was required. He referred to the suggestion in the Convention Compliance Committee’s December 2010 report that the appropriate standard might be a proportionality test, but he did not submit that it was.

The argument was that CA decisions which adopted and confirmed the Wednesbury approach either pre-date the Convention and its enactment into EU and national law and developments in the jurisprudence of the Court of Justice of the European Union, or are distinguishable or per incuriam [in English, wrong because they missed out something critical] . The  ACC’s  report expressed concern about the Wednesbury approach. The objector also relied on the fact that “what are in play here are fundamental rights”, rights to participation in front-line decision-making and the right of access to a court able to assess the substantive and procedural legality of an environmental decision under Article 9 of the Aarhus Convention.

Reliance on the Convention and the Compliance Committee found little favour with this Court, as can be seen from this summary:

 First, it is clear from the jurisprudence that the Convention is not part of domestic law or EU law: for example, see Walton v Scottish Ministers [2012] UKSC 44 at [100]. Secondly, the Compliance Committee has reached no concluded view that the Wednesbury approach is impermissible. Moreover, its expression of concern is general and unparticularised. For example, it only refers to Wednesbury and does not refer to the other established heads of public law review; error of law, error of fact, and the principles of relevance and of propriety of purpose which are sometimes insufficiently distinguished from Lord Greene’s residual category, which Lord Diplock termed “irrationality”. It also does not identify the variations in the intensity of Wednesbury review that reflect the nature of the interest affected.

And later about the ACC views

… that body has made no decision and has only expressed concerns

But there is a wider issue here, of interest outside the planning and environmental area – indeed over the whole scope of public law where proportionality may come into play.

 Any suggestion that the appropriate approach might be proportionality, however, has to overcome a formidable obstacle. The question for the Secretary of State when making his screening direction in this case was a question of fact, albeit not a hard-edged question.

And in questions of fact, proportionality does not play a part. One has to have recourse to other public law principles such as error of fact, which have their own very considerable limitations.

The real objective of this appeal was to convince the Court to refer the question to the CJEU who might potentially have had a different view on the adequacy of Wednesbury review. The CA were sceptical about this – they thought that the EU test of “manifest error of assessment” in the cases was substantially the same as the Wednesbury test.

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