Dicken & Ors, R (on the application of) v Aylesbury Vale District Council & Anor

A local planning authority may decide that an environmental impact assessment is unnecessary only where it can make a firm, rational judgment that the proposed development is unlikely to have significant environmental effects and there is nothing of substance to dispute. It may consider plainly effective remedial measures, including measures forming part of the development itself. Where a substantive environmental issue remains, the prescribed process of public participation is required.

The weight given to a material planning consideration is for the planning decision-maker. A diminution in neighbouring property values is not, by itself, a material planning consideration or an interference with Convention property rights, although it may provide evidence of a loss of amenity.

The appellants sought permission to challenge planning permission granted by Aylesbury Vale District Council for an organic poultry farm housing about 6,000 chickens. The council had concluded after screening under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 that an environmental impact assessment was unnecessary.

HHJ Hamilton QC, sitting in the Administrative Court, refused permission to apply for judicial review. The proposed challenge alleged that an assessment was legally required, that the council had disregarded material planning considerations and that it had failed to consider the development’s effect on neighbouring property values and property rights. The Court of Appeal considered whether any ground had a real prospect of success.

1. The application was refused. The council was entitled to conclude that the development was unlikely to have significant environmental effects and that no environmental impact assessment was required. Laws LJ gave the judgment, with which Richards and Mummery LJJ agreed.

2. At the screening stage, an authority may conclude that no assessment is required where it can make a firm judgment that there is no likelihood of significant environmental effects and nothing of substance remains to be disputed. If a substantive environmental issue exists, the Directive and the Regulations require the democratic process of public participation. The authority may consider the likely effectiveness of remedial or ameliorative measures. The presence of uncertainty or a planning condition does not invariably require an assessment.

3. The oli-free roosting system was part and parcel of the proposed development rather than a separate remedial scheme. The council had observed a smaller installation using the system and had received a detailed report describing it. It was rationally entitled to conclude on the evidence that the proposed system would prevent substantive pollution or nuisance impacts. The judicial review court’s function was to determine whether the council had asked the correct question and reached an answer within the bounds of reason and the evidence.

4. The complaints concerning avian flu, the proposed operating system, the fallback position and the effect on an existing livery business disclosed no arguable error. The applicants’ submissions confused leaving a material consideration out of account with assigning little or no weight to it. The weight given to a material consideration is a matter of planning judgment.

5. Applying Lough v First Secretary [2004] 1 WLR 2557, diminution in property value is not itself an independent basis for alleging a breach of article 1 of the First Protocol. Nor is it generally a freestanding planning consideration. A reduction in value may be evidence of a loss of amenity, but amenity should be assessed directly.

6. The reference to “material assets” in Annexe 4 paragraph 3 of the EIA Directive did not require consideration of private property values as freestanding matters. The expression appeared within a list concerning environmental aspects. It could not bear the construction advanced by the appellants.

1. Court of Appeal (Civil Division): The renewed application was refused: [2007] EWCA Civ 851.

2. Court of Appeal, papers: Dyson LJ refused permission to appeal on 2 May 2007.

3. Administrative Court: HHJ Hamilton QC refused permission to apply for judicial review on 5 March 2007 and delivered reserved reasons on 22 March 2007.