Friends of Basildon Golf Course, R (on the application of) v Basildon District Council

A screening opinion on whether Schedule 2 development requires an environmental impact assessment must be reached carefully and conscientiously. It must rest on sufficient and accurate information and demonstrate that the authority understood and considered the material environmental issues.

Indicative thresholds and generalisations do not replace the statutory assessment of the particular development. The authority must evaluate its specific effects in its actual location, including the cumulative proposal. Material errors about the development’s scale, or unjustified assumptions that ecological concerns can be addressed through mitigation, may render the screening opinion unlawful.

The interested party applied for permission to redevelop an existing golf course in two phases. The works involved extensive re-contouring through the importation of large quantities of inert waste. The local planning authority issued a screening opinion that no environmental impact assessment was required and subsequently granted permission for phase 1.

The appellants sought judicial review. Wyn Williams J refused the application in [2009] EWHC 66 (Admin). They appealed on the grounds that the screening opinion was legally defective, that the authority should have reconsidered it when further information emerged, and that the development was a county matter concerning waste operations. The central issue was whether the authority had lawfully evaluated the likely significant environmental effects of the entire proposal.

1. Appeal allowed. The screening opinion was legally defective and the planning permission was quashed. Pill LJ gave the leading judgment. Carnwath LJ agreed and supplied additional reasons. Rimer LJ agreed with both judgments.

2. The quantity of imported waste had been grossly understated. The opinion also failed to mention or evaluate the environmental effects of forming massive and extensive bunds from that material. There had therefore been no sufficient consideration of whether an environmental impact assessment was required. The authority had to reconsider whether regulation 3 of the Town & Country Planning (Environmental Impact Assessment) (England & Wales) Regulations 1999 applied.

3. The ecological analysis was also insufficient. Information available to the authority identified valuable wildlife habitats, potential breaches of protected-species legislation and a need for further seasonal surveys. In those circumstances, the opinion could not dispose of ecology merely by referring to a future report and mitigation strategy. This did not mean that the presence of protected species would always or routinely require an environmental impact assessment.

4. A screening decision must be carefully and conscientiously considered. It must be based on sufficient and accurate information and demonstrate that the material issues were understood and considered. The opinion need not be elaborate, and the court remains slow to interfere with the planning authority’s evaluative judgment.

5. Carnwath LJ held that the indicative criteria in Circular 02/99 were not prescriptive rules. The authority had wrongly treated the inert character of the waste and the fact that the works concerned an existing golf course as sufficient. It was required to assess the particular effects of the quantity deposited over the proposed area, including effects on hydrology, ecosystems and landscape.

6. The court did not determine whether the authority was obliged to revisit a lawful negative screening opinion. Pill LJ nevertheless considered it arguable that regulation 7 did not prevent later recognition that a development was EIA development and questioned the contrary conclusions in Fernback. Nor did the court determine whether the works were wholly or mainly waste operations constituting a county matter.

1. Court of Appeal (Civil Division): The appeal was allowed on ground 1. The screening opinion and consequential planning permission were quashed: [2010] EWCA Civ 1432.
2. High Court, Administrative Court: Wyn Williams J refused the application to quash the planning permission: [2009] EWHC 66 (Admin).