Birch, R (on the application of) v Barnsley Metropolitan Borough Council

Where a project may have significant environmental effects, planning permission cannot lawfully be granted unless a comprehensive screening opinion concludes that it is unlikely to have such effects, or the required environmental impact assessment has been undertaken.

Screening must address the whole proposed development, including associated operations and material whose status as waste is disputed. The authority must consider the proposal’s nature, size and location and ask the relevant environmental questions in a structured way. A failure to consider whether the development falls within Schedule 2 is a serious legal error and renders the permission unlawful.

The claimant sought judicial review of planning permission granted by Barnsley Metropolitan Borough Council for a waste composting facility at Bagger Hill Wood. The proposal involved receiving garden waste, processing it in windrows and spreading the degraded material on surrounding land.

The claimant argued that the Council had failed to comply with the EIA Directive and the Town and Country Planning (Environmental Impact Assessment) Regulations 1999. The principal issues were whether the spreading operation involved waste and formed part of the development, whether the screening opinion adequately considered the proposal’s nature, size and location, and whether procedural defects concerning delegation and publication invalidated the decision.

1. The claim succeeded. The planning permission granted on 27 February 2009 was quashed.
2. The court accepted the principle, reflected in Berkeley v Secretary of State for the Environment [2001] 2 AC 603, that an environmental impact assessment cannot be dispensed with where it is required. The screening process had to be comprehensive. The guidance in R (Lebus and Others) v South Cambridgeshire District Council [2002] EWHC 2009 Admin also required a written and properly reasoned screening opinion.
3. The Council had made a serious error by assuming that the proposal was outside Schedule 2 because the windrows occupied less than 0.5 hectares. It had to consider in detail whether the material spread after degradation was still waste. If it was, the spreading operation could affect whether the proposal constituted an installation for the disposal of waste within Schedule 2 paragraph 11(1)(b).
4. The associated spreading operation therefore required consideration as part of the proposed development. The Council had not undertaken that assessment in any structured way. Consequently, the environmental impact questions in its screening flow chart had never been asked or answered.
5. The delegation complaint did not affect the result. Although the delegation lacked formal perfection, it had occurred and had been exercised in good faith. Late placement of the screening opinion on the planning register was also criticised as inconsistent with the democratic purpose of the procedure, but there had been sufficient time for public comment and it did not itself alter the outcome.