Deciding what the ‘project’ was landed the Council in Court.

This summer has seen two disputes resolved by the Court on the topic which often causes debate in preparing an environmental statement for infrastructure schemes: what is the project?

In R (oao) Llandaff North Residents Association v (1) Cardiff Council (2) Dŵr Cymru Cyfengedig (3) Redrow Homes (South Wales) the development of a huge allocation in the Cardiff Local Development Plan 2006-2026 required a connection to the Cardiff treatment works. A minor part of those connection works was above ground and so not within the powers and rights available to a sewerage undertaker. Planning permission was required. Was it development which required an environmental statement (and EIA) by reason of being part of a bigger project (the housing development) which had been the subject of EIA?

The judgment was handed down on Monday 10th July. The week before, Holgate J handed down judgment in the Sizewell case in which a similar issue arose. At [72] he said, in summary:

  • different development proposals may be brought forward at different times, even though they may have a degree of interaction, if they are different “projects”;
  • undue delay would be likely if all the environmental effects of every related set of works had to be definitively examined before any of those works could be allowed to proceed;
  • Where two or more linked sets of works are in contemplation, which are properly to be regarded as distinct “projects” it is enough to assess cumulative effects when permission for the first project is sought, combined with the requirement for subsequent scrutiny under the EIA regulations for the second and each subsequent project.

In the Llandaff case, the Court held that the Council was quite entitled to conclude that the housing and the foul water connection were separate, stand-alone projects. The two schemes would not be located on adjacent land. Each set of works was being undertaken by a different developer (Dŵr Cymru and Redrow). Dŵr Cymru’s works served the housing development, but also other existing and potential developments in the area so that there was a functional relationship between the two but no functional interdependence. The former was considered to be the project for EIA purposes but did not exceed the thresholds set out in Schedule 2 to the EIA regulations. Accordingly, the Council did not consider that any potential impacts would be significant, and that was a rational conclusion.

The claim failed.

Richard Kimblin KC appeared for Dŵr Cymru Welsh Water