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

In deciding whether a project is likely to have significant environmental effects, the screening authority must address the project’s nature, site and location. The assessment is fact-sensitive. Existing, tested controls may be taken into account where the project is a continuation of an existing use and its additional features do not materially increase the environmental effects. A binding earlier decision on materially identical circumstances prevents a later judicial review challenge based on the same issue. A reference to the European Court of Justice is unnecessary where the domestic court can decide the determinative question with complete confidence.

The claimant challenged the Council’s planning consent permitting Brighton & Hove Albion Football Club to continue using Withdean Stadium until 30 June 2011. He alleged errors in the Council’s environmental impact assessment screening opinion, including reliance on mitigation measures and failure to consider cumulative impacts.

He sought a reference to the European Court of Justice and permission to apply for judicial review. The challenge followed earlier litigation concerning the same stadium use, in which the Court of Appeal had upheld the Council’s approach. The central questions were whether that earlier decision was binding and whether a European reference was necessary.

1. Applications refused. The application for a reference to the European Court of Justice and the application for permission to apply for judicial review were both refused.
2. The relevant screening question was whether the continued use of the stadium for a further three years was likely, by reason of its nature, site or location, to have significant effects on the environment. The Council had asked the correct question.
3. The material circumstances were identical to those considered in the earlier Court of Appeal proceedings. The additional temporary accommodation did not increase capacity or materially alter the environmental concerns. The earlier decision was therefore binding and prevented success on both grounds of challenge.
4. The court distinguished Lebus and Gillespie. Those cases involved prospective measures, whereas this case concerned controls that had been tried and tested in relation to the development under consideration. The distinction was material because the likely effect of mitigation depended on the facts of each case.
5. A reference under Article 234 involved two stages: whether it was necessary to enable the domestic court to determine the dispute, and, if so, whether the court should exercise its discretion to refer. The necessity condition was not met. The court could decide the issue with complete confidence, and no changed circumstance justified a different conclusion from that reached previously.
6. The European Commission’s correspondence was given very little weight. The House of Lords’ refusal of permission did not decide whether the issue was acte clair. The draft ministerial circular supported a fact-sensitive approach.
7. The court did not finally determine the allegation that the proceedings were an abuse of process or a collateral attack. There was no order as to costs, save for taxation of the claimant’s legally aided costs.

The judgment describes earlier proceedings concerning the same stadium use, referred to as “Catt No 1”. The Administrative Court and the Court of Appeal rejected that challenge, and the House of Lords refused permission to appeal because the matter had become academic. The earlier judgment’s citation is not stated in this judgment.