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

In environmental-impact screening, the decision-maker must assess the project’s actual characteristics. It may take account of conditions limiting the development and of remedial or mitigation measures incorporated in the planning proposal. It need not assess an artificial version of the project from which reliable measures have been removed.

A previous appellate decision on the same legal issue should be applied unless material before the court provides a proper basis to reopen it. A screening assessment must address cumulative effects, but a detailed report may rationally conclude that no material cumulative impact arises from other site uses or developments.

The claimant, a neighbour of Withdean Stadium, challenged a further temporary planning permission allowing Brighton and Hove Albion Football Club to use the stadium until 2011. The council had adopted a screening opinion that no environmental impact assessment was required under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

An earlier challenge to a materially similar permission had failed in the Court of Appeal: [2007] EWCA Civ 298. The claimant alleged that the 2008 screening opinion unlawfully considered mitigation measures and failed to assess cumulative impacts. He also sought a preliminary reference under Article 234 of the EC Treaty.

Sir Thayne Forbes, sitting as a deputy High Court judge, refused permission to apply for judicial review and refused a reference. After a paper refusal by Sullivan LJ, the claimant renewed his application orally before the Court of Appeal.

1. The renewed application was refused. Richards LJ, with whom Pill LJ agreed, held that the proposed appeal had no real prospect of success.

2. The earlier Court of Appeal decision in Catt 1 was directly applicable. It established that environmental-impact screening requires examination of the actual project. Accordingly, the council could consider planning conditions restricting the frequency and circumstances of football matches, together with traffic-management and other remedial measures forming part of the proposal. It was unnecessary to disregard those measures by assessing a hypothetical unmitigated development.

3. The factual differences between the 2005 and 2008 screening opinions could not justify a different conclusion. The subsequent authorities did not cast doubt on the legal principles applied in Catt 1. The European Commission correspondence neither adopted the claimant’s legal position nor indicated that infringement proceedings had been pursued or that Catt 1 was erroneous. It therefore gave no basis to reopen the issue, grant judicial-review permission, or make a reference under Article 234 of the EC Treaty.

4. The cumulative-impact ground was unarguable. The officer’s report addressed the history of temporary permissions, other activities at the stadium, and whether other uses or developments, considered with the extended football use, could create a cumulative impact. Its conclusion that they did not was rational.

5. The court therefore refused the application for permission to appeal and the renewed application before it.

• Court of Appeal (Civil Division): By [2009] EWCA Civ 1417, the court refused the claimant’s renewed oral application for permission to appeal.

• Court of Appeal (Civil Division): Sullivan LJ had previously refused permission to appeal on the papers.

• Administrative Court: Sir Thayne Forbes, sitting as a deputy High Court judge, refused a preliminary reference under Article 234 of the EC Treaty and permission to apply for judicial review. No citation was stated.