Bateman, R (on the application of) v South Cambridgeshire District Council & Anor

A negative environmental impact assessment screening opinion must contain, or be accompanied by, sufficient information to show that adequate screening has occurred. It must enable interested persons to understand why an environmental impact assessment was not required and to decide whether to challenge the decision.

A screening opinion is preliminary and does not require a full environmental assessment. However, general reference to guidance is insufficient where identifiable potential effects require consideration. If the opinion does not explain why those effects are absent or not significant, it is unlawful. A legally flawed screening opinion invalidates the planning process leading to the permission, which must be quashed.

Dr and Mrs Bateman challenged the Council’s grant of planning permission for a substantial extension to Camgrain Storage Ltd’s rural grain storage and handling facility. The Council had first adopted a screening opinion that no environmental impact assessment was required.

The proposed development was accepted to be a Schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) 1999 Regulations. The claimants contended that the screening opinion gave inadequate reasons concerning increased traffic, landscape impact and noise.

The proceedings came to the Court of Appeal from the Administrative Court judgment, [2010] EWHC 797 (Admin). The central issue was whether the negative screening opinion supplied enough reasoning and information to satisfy the applicable European law requirements.

1. By a majority, the appeal was allowed and the judicial review claim succeeded. Moore-Bick LJ, with whom Jackson LJ agreed, held that the screening opinion was unlawful. The resulting planning permission had to be quashed.

2. Although Regulation 4(6) expressly requires reasons where an authority decides that an environmental impact assessment is required, a negative decision must meet the standard in R (Mellor) v Secretary of State for Communities and Local Government Case C-75/08. It must contain, or be accompanied by, enough information to demonstrate adequate screening and permit an informed challenge.

3. A screening opinion is not a detailed assessment of planning and environmental matters. It is a preliminary process, ordinarily undertaken with incomplete information, to identify the relatively small class of developments likely to have significant environmental effects. That lower level of inquiry did not excuse the Council from explaining its conclusion on the potentially material effects it identified: traffic, landscape and noise.

4. The officer’s reasons showed that the proposal was a major development and referred generally to the Circular criteria. They did not state why the potential effects would be absent or insufficiently serious. The court could not safely infer that the officer had accepted particular assessments or relied on prospective planning conditions. Unlike R (Wye Valley Action Association Ltd) v Herefordshire Council [2011] EWCA Civ 20, the opinion did not make clear the decisive basis for the negative conclusion.

5. The court did not finally define likely or significant in the statutory test. Moore-Bick LJ considered that more than a bare possibility was probably required, but left the assessment to be made case by case in light of developing European jurisprudence.

6. Mummery LJ dissented. In his view, the concise opinion, read with the detailed request and supporting material, sufficiently disclosed the Council’s basis for deciding that an assessment was unnecessary.

7. Since screening was a necessary step in the process leading to the grant of permission, its legal flaw affected the process as a whole. The planning permission was quashed.

• Court of Appeal (Civil Division). The majority allowed the appeal, granted judicial review and quashed the planning permission: [2011] EWCA Civ 157.
• High Court of Justice, Queen’s Bench Division, Administrative Court. The proceedings came from the judgment of Mr Michael Supperstone QC: [2010] EWHC 797 (Admin). The judgment’s disposition at that stage is not stated in the supplied text.