Younger Homes (Northern) Ltd. v First Secretary of State & Anor

For Schedule 2 development, a valid screening opinion by the local planning authority can satisfy the statutory screening stage when an application is called in by the Secretary of State. A separate screening direction is required under regulation 8 only where the prescribed conditions, including the absence of a screening opinion or direction and an environmental statement, exist. An authorised planning officer’s opinion is not invalid because the delegation is not recited on the document, or because the authority later fails to send it to the applicant or place it on the register. Those are procedural breaches. They fall under section 288(1)(b)(ii), and quashing requires substantial prejudice. A material error in reasoning is not fatal where the relevant environmental effects were independently considered and sound reasoning was untainted.

This was a challenge under section 288 of the Town and Country Planning Act 1990 to a planning permission for retail, leisure and car-parking development on a former industrial site. The application had been called in by the First Secretary of State. The appellant later acquired part of the site and sought residential development, but the inquiry was not reopened. Ouseley J declined to quash the permission on 26 November 2003.

The appeal concerned whether the local authority had made a valid screening opinion, whether procedural failures invalidated it, whether an error concerning a traffic impact assessment was material, and whether the appellant had suffered substantial prejudice.

1. Appeal dismissed. Laws LJ gave the leading judgment. Lord Justice Wall and the President agreed. The planning permission was not quashed.
2. Under regulations 8(1) and 6(3)-(4) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 293, a Secretary of State dealing with a referred Schedule 2 application must make a screening direction where there is no screening opinion or direction and no environmental statement. The existence of a valid local authority screening opinion meant that this statutory trigger was absent.
3. The Council’s delegation scheme empowered the Director of Environmental Services to authorise planning officers to act on his behalf. The evidence supported the conclusion that Mr Raper had actually been authorised to make the screening opinion. A general authority was sufficient; the evidence did not require proof of a separate specific authorisation.
4. The requirement that an authorised officer act in the chief officer’s name concerned substance rather than form. The absence of a formal recital on the unsigned manuscript did not invalidate the opinion where the officer had acted in the chief officer’s name. The document therefore satisfied the statutory definition of a screening opinion.
5. Failure to send the opinion to the applicant under regulation 5(5), or to place it on the planning register under regulation 20(1), breached procedural obligations but did not deprive the document of its statutory character. The officer’s mistaken view that a traffic impact assessment could make an environmental impact assessment unnecessary was an error of law. It was not fatal because the relevant traffic effects had in fact been properly considered and the sound reason for not requiring an assessment was not tainted by the error.
6. The reasoning in Berkeley [2001] 2 AC 603 concerned a complete failure to consider whether an environmental impact assessment was required. That was materially different from the procedural breaches here. The latter fell under section 288(1)(b)(ii), rather than the ultra vires ground in section 288(1)(b)(i), and the appellant had to show substantial prejudice under section 288(5)(b). No such prejudice was established.
7. The discovery of inaccurate evidence about delegation did not make the trial unfair. The appeal could fairly be resolved on the evidence before the Court of Appeal, and a retrial or cross-examination was unnecessary. The appellant was ordered to pay the First Respondent’s costs, subject to detailed assessment. The costs order below was undisturbed.

• Court of Appeal (Civil Division): On 30 June 2004, the appeal was dismissed. The decision was unanimous.
• High Court, Administrative Court: Ouseley J, on 26 November 2003, declined to quash the planning permission granted by the First Secretary of State.