Evans v First Secretary of State & Ors

A Secretary of State’s screening direction under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 conclusively determines, unless varied or cancelled, whether proposed development is EIA development. An inspector determining a planning appeal must proceed on that basis and cannot reopen the issue. Regulation 9(2) applies only where a question arises whether the application is an EIA application and it appears to the inspector that it may be one. A planning permission challenge cannot indirectly attack an unchallenged screening direction by relying on findings relevant to environmental impact but not directed to the Schedule 3 criteria.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision granting the University planning permission for additional student accommodation. The Secretary of State had previously directed under regulation 9(1) of the 1999 Regulations that the development was not EIA development. The claimant had not challenged that direction and had not raised environmental-impact assessment at the public inquiry. The central issue was whether the inspector was nevertheless required to reconsider the need for an assessment or refer the question to the Secretary of State under regulation 9(2).

1. The court entered summary judgment for the University under CPR Part 24. The claim had no real prospect of success and there was a compelling reason to determine it without a trial.

2. Read in the light of Directive 85/337/EEC and Berkley v Secretary of State for the Environment [2001] 2 AC 603, the Regulations require the Secretary of State, when deciding whether development is EIA development, to consider whether it falls within Schedule 1 or Schedule 2 and to take into account the relevant Schedule 3 criteria.

3. Under regulation 4(3), a screening direction determines for the purposes of the Regulations whether development is EIA development. Once the Secretary of State has directed that development is not EIA development, the planning application ceases to be an EIA application and regulation 3(2) no longer prevents planning permission being granted without an assessment.

4. The direction remains effective unless varied or cancelled. The Secretary of State may reconsider it before planning permission is granted, but no such reconsideration had been sought or undertaken. The inspector therefore had no jurisdiction to reopen the issue. His observation that the development would significantly affect the character and appearance of the area did not determine its likely significant effects on the environment by reference to the Schedule 3 criteria.

5. Regulation 9(2) is engaged only if a question arises whether the relevant application is an EIA application and it appears to the inspector that it may be one. Where those conditions are satisfied in a case without a contrary screening direction, the inspector must refer the question to the Secretary of State before determining the appeal, and that duty may be enforced even if the issue was not raised at the inquiry. Neither condition was satisfied here.

The Council refused planning permission. The University appealed under section 78 of the Town and Country Planning Act 1990, and the Secretary of State’s inspector subsequently granted permission. The claimant challenged that decision under section 288. This court entered summary judgment for the University.