Evans v First Secretary of State & Ors

A screening direction by the Secretary of State conclusively determines whether proposed development is environmental impact assessment development. It remains decisive unless and until the Secretary of State cancels or varies it. An inspector’s conclusion that development will significantly affect an area’s character and appearance does not necessarily contradict a screening direction because the planning and environmental assessment inquiries are different.

An inspector should invite reconsideration only exceptionally, where new information may invalidate the direction’s basis and creates a realistic prospect of a different decision. The rationality standard governs any failure to refer. Summary judgment under Civil Procedure Rules Part 24 is available in a statutory planning challenge under section 288.

The Secretary of State directed that a university’s proposed student accommodation was not environmental impact assessment development. After a six-day inquiry, an inspector allowed the university’s planning appeal and granted permission. Although he found that the development would significantly affect the character and appearance of its surroundings, he considered that effect non-adverse.

A local resident challenged the inspector’s decision under section 288 of the Town & Country Planning Act 1990. Lightman J entered summary judgment for the university under Civil Procedure Rules Part 24. The claimant appealed, contending that the inspector’s findings contradicted the screening direction, that the environmental assessment issue should have been referred to the Secretary of State, and that summary judgment was inappropriate for a section 288 application.

1. Appeal dismissed unanimously. Simon Brown LJ gave the leading judgment. Judge LJ and Jonathan Parker LJ agreed.

2. The Secretary of State’s screening judgment and the inspector’s planning judgment addressed different questions. The inspector assessed the development’s planning merits and its effect on particular aspects of local character and appearance. He neither made nor purported to make an assessment under the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, including the Schedule 3 selection criteria. His findings were therefore compatible with the screening direction. A significant environmental effect may require assessment whether it is adverse or beneficial, but the inspector had made no finding of such an effect within the Regulations.

3. Regulation 4(3) made the Secretary of State’s direction decisive, unless and until cancelled or varied, as to whether the development was environmental impact assessment development. Regulation 3(2) did not prohibit the grant because the direction established that the application was not an environmental impact assessment application. Regulation 9(2) was not engaged because the direction had already determined that question.

4. Simon Brown LJ added, by way of guidance, that an inspector’s mere disagreement with the Secretary of State on the same facts would not justify inviting reconsideration. Referral might be appropriate where the inspector discovered an important misapprehension about the development or new material facts which appeared to invalidate the direction’s basis. Reconsideration should occur only very exceptionally and where there was at least a realistic prospect of a different direction. Since the Regulations imposed neither an express duty nor an express power to refer, the inspector’s decision was governed solely by rationality. No referral had been requested and nothing arising at the inquiry invalidated the direction.

5. The statutory application was bound to fail and no compelling reason required a trial. Part 24 applied to section 288 proceedings. Its use did not improperly introduce a permission stage. Summary judgment properly brought the misconceived application to a speedy conclusion.

• Court of Appeal (Civil Division): The claimant’s appeal was dismissed unanimously. The court upheld the summary judgment entered for the university: [2003] EWCA Civ 1523.
• High Court, Queen’s Bench Division (Administrative Court): Lightman J entered summary judgment for the university on 6 March 2003 under Civil Procedure Rules Part 24. No citation is stated in the judgment.