Candlish, R (on the application of) v Hastings Borough Council

The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 establish a two-stage process. The authority first determines whether the application concerns Schedule 1 or Schedule 2 development. Only if it is Schedule 2 development does the question arise whether significant environmental effects are likely. The relevant development is ordinarily that for which planning permission is sought, not a wider project contemplated for the future. Thresholds and criteria are permissible, provided they have been fixed consistently with the Directive and its requirement to consider matters such as cumulative effects. At the second stage, cumulative development and any wider development of which the proposal is an integral part may be relevant. A planning challenge must also be brought promptly, particularly where implementation is under way, but delay will not defeat a claim without a sufficient combination of delay and prejudice.

The claimant challenged Hastings Borough Council’s grant of planning permission to Hastings and Bexhill Renaissance Limited, trading as Sea Space, for a spine road, mini-roundabout and surface-water attenuation works forming Phase 1 of a proposed wider Ore Valley development.

The claimant argued that the Phase 1 works had to be assessed cumulatively with the anticipated housing, commercial and ancillary development, and therefore required screening under the 1999 Regulations before permission was granted. The Council and interested party argued that the application had to be assessed by reference to the works actually applied for, which fell below the applicable threshold for road construction.

The court first considered promptness and then the substantive question whether the application was an EIA application.

1. Promptness. A judicial review claim must be issued promptly, even when issued within the three-month period in CPR 54.6. Planning challenges should ordinarily be notified at the earliest practicable stage because developers may proceed quickly after permission is granted. The claimant’s delay was regrettable, and the failure to notify Sea Space was significant, but the evidence did not establish sufficient causally connected prejudice. Permission was therefore granted.
2. Statutory scheme. The 1999 Regulations require a two-stage assessment. The authority must first determine whether the application concerns Schedule 1 or Schedule 2 development. The likelihood of significant environmental effects is considered only if the development is Schedule 2 development, subject to the sensitive-area provisions. The relevant assessment is directed to the application for planning permission.
3. Wider project. The Phase 1 application was genuinely an application for the spine road and associated works. It was not legally to be treated as an application for the wider Ore Valley project merely because the road was intended to facilitate later development and had little practical utility without it. The Regulations did not justify treating “development” as equivalent to a wider “project”.
4. Thresholds and cumulative effects. The Directive permits Member States to establish thresholds and criteria and does not require every application below a threshold to undergo individual assessment. The thresholds must, however, be fixed consistently with the Directive, including consideration of cumulative effects. The claimant produced no material showing that the thresholds in Schedule 2 were incompatible with those requirements. The principles in Berkeley v Secretary of State for Environment (No 2) and [2002] EWCA Civ 1012 supported that conclusion.
5. The observations in R v Swale Borough Council, ex parte Royal Society for the Protection of Birds were highly persuasive. They correctly distinguished between identifying the category of development by reference to the application and considering, at the later significant-effects stage, whether the proposal was an integral part of a more substantial development.
6. The Council lawfully concluded that the application was not EIA development. A reference to the European Court of Justice was unnecessary. The claim failed and was dismissed.