ZEB v Birmingham District Council & Anor

Whether a Schedule 2 development is likely to have significant environmental effects is assessed on classical Wednesbury principles. The concept of significance is evaluative and is not hard-edged. A screening authority may consider available reports, proposed conditions and mitigation measures to a limited extent, although mitigation cannot replace the environmental impact assessment procedure. A screening opinion is an initial assessment. It need not contain detailed reports or separate conclusions on every environmental topic. The authority must have sufficient information to make a rational planning judgment and must consider relevant matters. Uncertainty, further survey work or the need for conditions does not, by itself, require an environmental impact assessment.

The claimant sought permission to challenge Birmingham District Council’s decision to grant outline planning permission for redevelopment at Warwickshire County Cricket Club’s Edgbaston ground. The development included a new stand, floodlighting and mixed commercial, residential and visitor facilities. The principal issue was whether the council’s screening opinion lawfully concluded that the proposal was not likely to have significant environmental effects under the Town and Country (Environmental Impact Assessment) (England and Wales) Regulations 1999.

The claimant alleged failures concerning future ecological, archaeological, traffic and contamination reports, an unlawful distinction between environmental impact and amenity, and failure to assess the effect of floodlighting on local character. The defendant and interested party also raised standing, delay and prejudice.

1. Application refused. The claimant had not shown an arguable public law error in the council’s screening opinion or planning decision.

2. The question whether a Schedule 2 development is EIA development is subject to Wednesbury review. The court may examine whether relevant considerations were taken into account, irrelevant considerations were relied upon, or the decision was irrational. Significance is not a hard-edged concept and involves planning judgment.

3. The purpose of a screening opinion is to decide initially whether an environmental assessment is required. Under regulation 5 of the Town and Country (Environmental Impact Assessment) (England and Wales) Regulations 1999, a brief description and sufficient identifying information are required. The authority normally has three weeks to adopt its opinion. This indicates that detailed investigation and reports are not generally required at the screening stage.

4. The council was entitled to rely on the information available, including the ground survey and ecological material. The fact that further surveys or mitigation measures were contemplated did not make the decision irrational. Conditions requiring further bat surveys and mitigation could properly be taken into account to a certain extent. They could not, however, be used as a substitute for the EIA procedure.

5. The treatment of floodlighting was capable of a lawful reading. The planning committee had information about its effect on local character and amenity, and the permission expressly addressed those matters. The challenge therefore amounted to disagreement with the planning merits rather than an arguable public law error.

6. The claimant had sufficient interest. Time ran from the grant of planning permission, although prior knowledge of the proposal and an impending resolution to grant permission were relevant to promptness. The court would have been reluctant to refuse permission solely for delay in the circumstances, but the substantive grounds failed.

First-instance application for permission to bring judicial review proceedings. The application was refused by the High Court (Administrative Court).