Mageean, R (on the application of) v Secretary of State for Communities & Local Government

Where a screening direction states that proposed development is not EIA development, an Inspector must consider referring it back to the Secretary of State if a change in circumstances could realistically affect that decision. The test is whether the change could, rather than would, make a difference. The Secretary of State alone may cancel or vary the direction. The Inspector must address the screening question, not merely the planning merits, and must consider the development and its environmental effects as a whole. Mere passage of time is insufficient without an identifiable material change. A potentially material change, such as the designation of a nearby World Heritage Site, requires consideration of referral. Failure to undertake that review lawfully vitiates a subsequent grant of planning permission.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision granting planning permission for a wind turbine. The proposal was schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. A 2003 screening direction had concluded that it was not EIA development. Before the appeal was determined, a nearby World Heritage Site had been designated. The central issue was whether the Inspectorate had to consider referring the screening direction back to the Secretary of State, and whether the Inspector had in fact done so.

1. Claim allowed. The planning permission was quashed. The Inspectorate had not considered the correct question, namely whether the World Heritage Site designation, taken with all other circumstances, could realistically lead the Secretary of State to conclude that the proposal was likely to have significant effects on the environment.
2. Under the EIA Regulations, the Secretary of State’s screening direction determines whether development is EIA development. Only the Secretary of State may cancel or vary it. An Inspector must not usurp that function by deciding for herself that no referral is required merely because she considers the development unlikely to have significant environmental effects.
3. The applicable threshold is whether a change in circumstances could, rather than would, affect the screening decision. The prospect must be realistic and not fanciful. Mere lapse of time is insufficient without an identifiable material change, but the designation of a nearby World Heritage Site was potentially material because of its proximity, international importance, and the scale and elevated location of the proposed turbine.
4. The Inspector’s planning balance did not answer the screening question. Planning merits and EIA screening serve different purposes. The fact that development may ultimately be acceptable, or that effects may be mitigated or outweighed by benefits, does not remove the need for environmental assessment where the development is likely to have significant effects.
5. The Inspector’s witness statement did not cure the failure. The Inspector appeared to ask whether she considered the proposal likely to have significant effects, rather than whether the changed circumstances could realistically lead the Secretary of State to reach a different screening decision. Relief was not withheld because it was not inevitable that the only lawful answer would be that referral was unnecessary. The defendant was ordered to pay £15,000 including VAT in costs. Permission to appeal was refused, but time to apply to the Court of Appeal was extended to 21 days after publication of the approved transcript.

First-instance judicial review. Permission to appeal was refused by the High Court, with time extended for an application to the Court of Appeal.