Baker, R (on the application of) v Bath and North East Somerset Council

Whether development requires environmental impact assessment is initially a matter for the local planning authority through the statutory screening process. Until that process is completed, the court cannot determine that the development is EIA development. The authority’s decision is reviewable on conventional judicial review grounds.

The court has a fact-sensitive discretion whether to compel a local planning authority to take enforcement action or issue a stop notice. A mandatory order is not justified merely because planning permission is absent, particularly where alleged breaches largely fall outside planning control and lawful screening and planning decisions are imminent.

The claimant sought judicial review concerning a waste composting site operated by the interested parties. Earlier planning permissions had been quashed for failure to comply with the environmental impact assessment regime. The defendant later adopted negative screening opinions, but accepted that they were unlawfully authorised and consented to their being quashed.

The claimant sought a mandatory order requiring enforcement action, or a declaration that the defendant’s failure to act was unlawful, pending a fresh screening process. The central issues were whether the development could already be treated as EIA development and whether the court should compel enforcement or require a stop notice.

1. The screening opinions were quashed by consent.

2. The court declined to order the defendant to take enforcement action or issue a stop notice. Whether environmental effects are significant is a matter of judgment for the local planning authority, subject to conventional judicial review.

3. This site had not been found to be EIA development. The screening process had yet to occur. Until lawful screening opinions were obtained, neither the defendant nor the court could say that the development was EIA development. The court relied on The Queen on the application of Jones v Mansfield District Council and Another [2003] EWCA Civ 1408.

4. Many alleged regulatory breaches concerned matters outside planning control, including breaches of a waste management licence. Those matters did not themselves justify planning enforcement.

5. The delay was unfortunate but understandable. The authority intended to obtain fresh screening opinions and decide the planning applications within weeks. The exceptional facts in Ardagh Glass Limited v Chester City Council and Others [2009] EWHC 745 (Admin) did not require a mandatory order here. The claim for mandatory relief and the alternative declaration were dismissed.