Jones, R (on the application of) v Mansfield District Council & Anor

A local planning authority's decision whether a Schedule 2 project is likely to have significant environmental effects is a planning judgment. It is reviewable only on Wednesbury grounds, not by a full reconsideration of fact and law.

Under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, an environmental impact assessment is required only where significant effects are likely. The authority must make an informed judgment on the information available. Uncertainty does not automatically require an assessment, although the information must be sufficient for a reasonable screening decision. Conditions and undertakings cannot replace an assessment, but proposed remedial measures may be considered to a limited extent.

The appellant lived next to land for which the local planning authority resolved to grant outline permission for an industrial estate. After an earlier challenge, the authority reconsidered whether an environmental impact assessment was required and decided that it was not. It then granted permission subject to conditions and a unilateral undertaking requiring further ecological surveys.

Richards J dismissed the appellant's judicial review claim. He held that the authority had sufficient information to decide that significant environmental effects were unlikely, notwithstanding concerns about golden plovers and bats. The appellant contended that unresolved uncertainty and post-permission surveys made the screening decision unlawful.

The central issue on appeal was whether the authority had applied the correct test and had lawfully concluded that an environmental impact assessment was unnecessary.

1. Appeal dismissed. Dyson LJ, with whom Carnwath and Laws LJJ agreed, held that the screening question under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 involved an exercise of planning judgment. It was therefore subject to judicial review on conventional Wednesbury grounds, rather than a full appeal on the facts and law.
2. An environmental impact assessment was required only if the Schedule 2 development would be likely to have significant environmental effects. There was no additional low threshold, no rule that uncertainty had to be resolved in favour of requiring an assessment, and no requirement for a comprehensive assessment of every possible effect before a negative screening decision could be made.
3. The authority nevertheless had to make an informed judgment. It had to consider the information available, including gaps and uncertainty, and decide whether those matters prevented a reasonable conclusion that significant effects were unlikely. The answer depended on the circumstances of the case.
4. The court approved the distinction between a lawful screening decision and the impermissible use of conditions as a surrogate for the assessment process. Conditions and undertakings could not simply be treated as ensuring that all effects would be eliminated. Proposed remedial measures could, however, be considered to a limited extent. Further surveys after permission were compatible with a negative screening decision where the authority already had sufficient information and did not rely on those surveys to reach it.
5. On the facts, this was not analogous to Bellway Urban Renewal Southern v Gillespie [2003] EWCA Civ 400. The committee had extensive ecological material, consultees' representations and planning reports. It had not treated the conditions or undertaking as replacing an environmental impact assessment. It was reasonably entitled to conclude that the development was unlikely to have significant effects on birds, including golden plovers, or bats.

Carnwath LJ also observed that environmental impact assessment is intended to assist efficient and inclusive decision-making in appropriate cases, while leaving intact the ordinary planning duty to obtain and consider relevant information.

• Court of Appeal (Civil Division) — in [2003] EWCA Civ 1408, dismissed the appeal and affirmed the refusal of judicial review.
• Queen's Bench Division — Richards J dismissed the judicial review application on 20 January 2003, holding that the council's negative screening decision was reasonable and lawful.