Mellor, R (on the application of) v Secretary of state for Communities and Local Government

A screening determination need not itself set out reasons, but an interested person who requests them must receive the reasons or relevant information. A determination may be sufficiently reasoned when its contents are read with information already disclosed and further material supplied on request. If later events make the dispute academic, the court may decline declaratory relief where deciding the matter would require detailed examination of the superseded decision. It may nevertheless identify the governing legal position. Costs should reflect the effective winner and the parties’ conduct, including whether the litigation could have been avoided by supplying information already held.

Partnerships in Care applied for planning permission for a medium secure hospital in open countryside and an area of outstanding natural beauty. After the local authority concluded that an environmental impact assessment was required, the Secretary of State decided that one was unnecessary.

Mellor sought judicial review. Owen J refused permission, but permission to appeal and to apply for judicial review in the Court of Appeal was granted. The Court of Appeal referred questions to the European Court of Justice concerning reasons for environmental screening determinations.

By the hearing, later screening directions had superseded the challenged direction and the planning application had been withdrawn. The questions were therefore academic. The remaining issues were whether a declaration should be made and how the costs of the domestic and European proceedings should be allocated.

Appeal allowed unanimously. Arden LJ and Moore-Bick LJ agreed with the judgment of Waller LJ. No declaration was made, and the Secretary of State was ordered to pay the costs of the litigation, including the European proceedings.

1. Because the original screening direction had been superseded and the planning application withdrawn, the referred questions were academic. A declaration was unnecessary where granting it would require the court to examine the details of an academic case. It was sufficient to make clear that the European Court of Justice’s ruling represented the law.
2. The court treated Council Directive 85/337/EEC, as amended by Directive 2003/35/EC, as requiring no reasons to appear in the screening determination itself, while requiring the authority to provide reasons or relevant information when an interested person requested them. The sufficiency of the determination could be assessed with information already disclosed and additional information supplied on request.
3. The earlier guidance in R v SSE ex parte Marson, reported at [1989] Env LR 761, had to be read in the light of the European ruling because the legal position was different. The Secretary of State’s reliance on Marson’s view that there was no duty to provide reasons of any kind was therefore unsuccessful.
4. For costs, the court had to identify whether either party had succeeded, consider the effective result of the litigation, and examine the parties’ conduct and what generated the costs. Mellor had sought reasons generally, rather than only insisting that they appear in the decision letter. The Secretary of State had adopted the broader position that no reasons or information need be provided.
5. The Secretary of State already possessed a detailed assessment which could have supplied the relevant information and might have avoided the litigation. Mellor was therefore the successful party for costs purposes, and the Secretary of State was ordered to pay the costs in the Court of Appeal and before the European Court of Justice.

• Administrative Court (Queen’s Bench Division) — Owen J refused permission to apply for judicial review and ordered the Secretary of State to pay the costs of that hearing.
• Court of Appeal (Civil Division) — Permission to appeal and to apply for judicial review was granted. The court referred questions to the European Court of Justice. After the challenged direction was superseded and the planning application withdrawn, the court declined to make a declaration, allowed the appeal, and ordered the Secretary of State to pay the litigation costs.