Necessary infrastructure – not necessarily the same project
In the latest of a series of recent cases (see Ashchurch, Sizewell C) concerning the ambit of a “project” for the purposes of Environmental Impact Assessment, the High Court in R (LNRA) v Cardiff Council – [2023] EWHC 1731 has dismissed a challenge to the Council’s conclusion that a pumping station and associated improvements to the foul sewerage network formed part of the same project as a large urban extension.
In 2017 Cardiff Council granted outline permission for the Plasdwr development: a large-scale mixed use development in the north-west of the city, which included some 6000 homes. Unsurprisingly, the development is predicted to generate a significant volume of foul sewage which would necessitate substantial improvements to Cardiff’s public sewerage system.
The question facing Cardiff, and the central issue in the judicial review, was whether the construction of an off-site pumping station and associated improvements to the foul sewerage network – which were required to accommodate the Plasdwr development and which were being paid for by the developers of that scheme – was part of the same project for the purposes of EIA.
The Council, having regard to the factors identified in Wingfield, concluded that the pumping station was a separate project to the Plasdwr development. This was contrary to approach taken by the consultants for Dwr Cymru (Welsh Water) who, in their screening request, had treated the pumping station as being an extension to the Plasdwr development. The effect of the Council’s approach was that the pumping station did not meet the thresholds for Schedule 2 development, and therefore could not constitute EIA development.
The Court held that it was open to the Council to reach the judgement that the pumping station was a separate project to the Plasdwr development and, in particular, open to them to conclude that the schemes were not functionally interdependent. In doing so, the Court had regard to the point made by Holgate J in Sizewell C, that interdependence “would normally mean that each part of the development is dependent on the other”. In this case, crucially, the pumping station would serve the foul needs of other developments in the area.
The Court also rejects the proposition that the Council were required to take account of the environmental effects of surface water removal works to the public sewerage network which were necessary in order for the Plasdwr development to be fully occupied.
- Robert Williams, leading Alex Williams, appeared for Cardiff Council.
- Nina Pindham appeared for the developer and landowners.
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