Catt, R (on the application of) v Brighton & Hove City Council & Anor

When deciding whether Schedule 2 development is likely to have significant environmental effects, a planning authority must examine the actual characteristics of the particular project. It may consider conditions limiting the development and proposed remedial or ameliorative measures. Their effectiveness need not be certain or uncontroversial, but contingencies cannot simply be assumed to produce a favourable result.

The assessment is a case-specific planning judgment involving prediction. The existence of uncertainty or a proposed condition does not itself require an environmental impact assessment.

Time for challenging a planning permission does not begin with an earlier screening opinion. The opinion may be challenged separately, but failure to do so does not bar a timely challenge to the eventual permission.

The Council granted the interested football club temporary planning permission to continue and expand its use of an urban stadium. The appellant, a nearby resident affected by match-day disturbance, sought judicial review on the ground that permission had been granted without an environmental impact assessment under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

Collins J refused the claim. He held that the Council had lawfully concluded that the development was unlikely to have significant environmental effects. He also considered that any challenge should have been brought within three months of the earlier screening opinion.

The appeal concerned whether the Council could take proposed conditions and mitigation measures into account when screening the development, and whether time for judicial review began with the screening opinion or the subsequent grant of planning permission.

1. Appeal dismissed unanimously. The Council's screening opinion involved no error of law. It was entitled to conclude that an environmental impact assessment was unnecessary under Regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

2. The statutory task required examination of the actual characteristics and likely environmental effects of the particular project. A decision-maker need not separate the proposed development from conditions, remedial measures or ameliorative measures forming part of the proposal. Ignoring conditions controlling the frequency and timing of matches would have produced an artificial assessment of the development.

3. No general rule confines consideration to mitigation whose nature, availability and effectiveness are already established and uncontroversial. The significance of uncertainty depends upon the circumstances. Where unresolved contingencies are crucial, the authority cannot assume that every stage will produce a favourable result. In other cases, the likely effectiveness of conditions can reasonably be predicted, or may not be crucial to the screening conclusion. The existence of uncertainty, further surveys or a planning condition therefore does not automatically require an environmental impact assessment.

4. The Council had extensive experience, surveys and monitoring concerning the existing stadium use. It could assess the proposed additional capacity in that context, including the limited frequency and duration of matches and the continuing traffic and stewarding measures. Its reference elsewhere to significant match-day disturbance did not compel the conclusion that the development was likely to have significant environmental effects.

5. On delay, the principle in R (Burkett) v Hammersmith and Fulham LBC [2002] 1 WLR 1593 applied. Although a screening opinion has statutory formality and may be challenged immediately, it neither grants permission nor inevitably leads to permission. Time for challenging the subsequent planning permission therefore began when that permission was granted, not when the screening opinion was issued.

6. The court did not decide whether the interval after the grant justified refusal of relief. Prior knowledge of the screening opinion could nevertheless be considered when assessing whether proceedings were brought promptly, and continuing delay could prejudice the developer or good administration.

• Court of Appeal (Civil Division): By [2007] EWCA Civ 298 , unanimously dismissed the appeal because the screening opinion was lawful. It nevertheless rejected the conclusion that time for judicial review began with the screening opinion.

• High Court, Administrative Court: Collins J refused the application to quash the planning permission on 15 June 2006. He held that the screening opinion was lawful and that any challenge should have been made within three months of that opinion. No citation is stated in the judgment.