Cooperative Group Ltd, R (on the application of) v Northumberland County Council

For a Schedule 2 development, a local planning authority must have sufficient information to make an informed judgment about likely significant environmental effects before adopting a negative screening opinion. The authority must consider the relevant Schedule 3 criteria, including effects arising from construction. It cannot defer assessment of environmental effects or rely on prospective mitigation unless the nature, effectiveness and availability of the measures are plainly established and uncontroversial. The decision is reviewable on ordinary Wednesbury irrationality grounds. Where the screening decision and resulting planning permission are irrational, the permission should be quashed and reconsidered on the merits existing at the date of reconsideration.

The claimant sought judicial review of a decision by Tynedale District Council to grant planning permission for a mixed retail, office and residential scheme at Prudhoe. The defendant, as successor authority, had adopted a negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, concluding that an environmental impact assessment was unnecessary.

The claimant argued that the authority lacked sufficient information to determine whether the Schedule 2 development was likely to have significant environmental effects. The defendant disputed irrationality and contended that the claim was brought too late. The issues were whether the screening opinion was irrational, whether the claim should be refused for delay, and what remedy followed.

1. Claim allowed and planning permission quashed. The screening decision was irrational because the authority lacked sufficient information to make an informed judgment on likely significant environmental effects.
2. Under regulations 2(1), 4 and 5 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, the authority had to consider whether this particular Schedule 2 development was likely to have significant environmental effects, taking account of relevant Schedule 3 criteria. The inquiry was reviewable on Wednesbury grounds.
3. The information supplied was largely a description of issues and assurances that traffic, drainage, retail impact, ecology, noise, dust and other matters would be addressed later. That did not enable a rational screening decision. The authority had to consider the environmental effects of the construction process as well as the completed development.
4. It was impermissible to rely on information expected to be supplied with the later planning application, following R(Lebus) v South Cambridgeshire DC [2003] Env.LR 17. Prospective remedial measures could justify a negative opinion only where their nature, effectiveness and availability were plainly established and uncontroversial, which they were not.
5. The claim was not barred by delay. Although issued close to the end of the three-month period, there was no evidence of prejudice, inconvenience, uncertainty or detriment to good administration. The planning permission therefore had to be reconsidered on its merits as at the date of reconsideration; it was not appropriate to retain it on the basis that the outcome was likely to be the same, following Berkeley v Secretary of State for the Environment [2001] 2 AC 603. The defendant was ordered to pay £40,000 inclusive of VAT in costs.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.