Goodman & Anor, R (on the application of) v Lewisham

A planning authority must determine the legal meaning of the categories of development governed by environmental impact assessment legislation. That question is reviewable for legal error, rather than only on Wednesbury grounds. Where the statutory expression is imprecise, however, the authority may legitimately choose between rational applications of that meaning to the facts.

“Infrastructure projects” and “urban development projects” in paragraph 10(b) of Schedule 2 to the Town and Country Planning (Environmental Impact etc) Regulations 1999 have a wide ambit. A storage and distribution facility cannot be excluded categorically. The authority must conduct the prescribed screening process sequentially and transparently before granting planning permission. A procedurally defective decision is not ordinarily cured by reconsideration undertaken after judicial review proceedings have begun.

The interested party applied to the London Borough of Lewisham for planning permission to construct a self-storage and distribution facility exceeding 0.5 hectare. Nearby residents contended that the council had acted unlawfully by granting permission without undertaking the screening required by the Town and Country Planning (Environmental Impact etc) Regulations 1999.

Sir Richard Tucker dismissed the residents’ judicial review claim. He treated the council’s conclusion that the proposal was not an urban development project as challengeable only on Wednesbury grounds. The residents appealed with his leave.

The central issues were whether the council had misdirected itself in law by treating storage and distribution facilities as categorically outside paragraph 10(b) of Schedule 2, whether a later reconsideration could preserve the permission, and whether the screening decision had been taken by a properly authorised officer.

1. Appeal allowed unanimously. Buxton LJ delivered the leading judgment. Morland J added reasons concerning the breadth of the relevant statutory language, and Brooke LJ agreed with both judgments. The planning permission was quashed and the application remitted to Lewisham for reconsideration.

2. A planning authority must first decide whether a proposal falls within a description and threshold in Schedule 2 to the Town and Country Planning (Environmental Impact etc) Regulations 1999. It cannot avoid the environmental assessment regime by failing to make that preliminary decision. If the proposal is Schedule 2 development, the authority must then decide whether it is likely to have significant environmental effects and is therefore EIA development.

3. The legal meaning of “infrastructure projects” and “urban development projects” in paragraph 10(b) is a question of law for the court. Wednesbury restraint has no role in determining that meaning. The expressions may nevertheless be imprecise. When applying their correct legal meaning to particular facts, an authority may choose between rational conclusions, and the court may intervene only where its conclusion falls outside that permissible range. The later assessment of whether Schedule 2 development is likely to have significant environmental effects is itself governed by Wednesbury review.

4. Lewisham had proceeded on the erroneous basis that storage and distribution uses as a category fell outside Schedule 2. Paragraph 10(b) has a wide ambit, and its listed examples are descriptive rather than limiting. A general storage and distribution facility serving businesses and the community cannot reasonably be treated as incapable of constituting an infrastructure or urban development project. The proposal therefore required lawful screening under Regulation 7.

5. The defect was not cured by Lewisham’s reconsideration after proceedings began. The regime requires sequential and transparent consideration of environmental implications before planning permission is granted. The authority had to retake the planning decision after applying the Regulations correctly.

6. The separate delegation challenge failed. Although the officer who communicated the conclusion was not a nominated decision-maker, the evidence established that an authorised officer had considered the application and made the effective decision. Buxton LJ nevertheless emphasised that decisions of this importance and their reasons should be formally recorded.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 140, unanimously allowed the appeal, quashed the grant of planning permission and remitted the application to Lewisham for reconsideration. Permission to appeal to the House of Lords was refused.
2. High Court, Administrative Court: Sir Richard Tucker dismissed the application for judicial review. He granted leave to appeal. No citation is stated in the judgment.