Renfree v Mageean

An inspector must invite the Secretary of State to reconsider an environmental impact assessment screening direction only where the inspector considers that new material facts or changed circumstances create at least a realistic prospect of a different screening conclusion.

Whether that prospect exists is a matter of planning judgment for the inspector. If no party requested reconsideration, a statutory challenge based on the inspector’s failure to act of their own motion succeeds only where every reasonable inspector would have made the reference. A court must review that judgment for rationality and must not decide the planning question afresh.

A planning inspector allowed an appeal and granted permission for a wind turbine. The Secretary of State had directed in 2003 that the proposal was not development requiring environmental impact assessment. The Cornwall and West Devon Mining Landscape was subsequently inscribed as a world heritage site, but no party asked the inspector to refer the screening direction to the Secretary of State for reconsideration.

On an application under section 288 of the Town and Country Planning Act 1990, a deputy High Court judge quashed the inspector’s decision: [2010] EWHC 2652 (Admin). The central issue on appeal was whether the judge had displaced the inspector’s planning judgment instead of asking whether the failure to initiate reconsideration was irrational.

1. Appeal allowed. The inspector’s failure to invite reconsideration of the 2003 screening direction was not irrational. The order quashing the inspector’s decision was therefore set aside.
2. The guidance in Evans v First Secretary of State [2003] EWCA Civ 1523, although obiter, was approved as eminently sensible. An inspector is obliged to invite the Secretary of State to reconsider a screening direction only where new material facts, a material misapprehension or changed circumstances create at least a realistic prospect that the Secretary of State would reach a different screening conclusion. The guidance applies whether the facts existed but were unappreciated when the direction was made or arose later.
3. Whether such a realistic prospect exists is pre-eminently a matter of planning judgment for the inspector. The court may review that judgment only on rationality grounds. Where no party asked for reconsideration, an application under section 288 of the Town and Country Planning Act 1990 succeeds only if every reasonable inspector would have referred the matter to the Secretary of State of their own motion.
4. The world heritage site inscription was a change of circumstances, but its materiality required evaluation of the proposed development’s likely impact. The relevant environmental criteria were not mechanical. They required consideration of location together with the characteristics and likely extent of the impact, informed by the management plan and the exercise of weight and judgment.
5. The inspector had found that the turbine would have no detrimental impact on the world heritage site. She relied on its distance from the protected areas, the character of the views, the management plan and the absence of objection from the responsible heritage body. That finding necessarily informed the rational assessment of whether a different screening conclusion was realistically possible.
6. The deputy judge erred by deciding for herself that the designation was potentially material and should have prompted consideration of a reference. The correct inquiry was whether every reasonable inspector, having reached this inspector’s findings and received no request for reconsideration, would nevertheless have referred the direction. That threshold was not met. Sullivan LJ gave the judgment, with which Mummery and Rimer LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The inspector’s omission was not irrational, and the order quashing her decision was set aside: [2011] EWCA Civ 863.
2. Administrative Court: A deputy High Court judge allowed the first respondent’s application under section 288 of the Town and Country Planning Act 1990 and quashed the inspector’s decision because she had not considered referring the screening direction for reconsideration: [2010] EWHC 2652 (Admin).
3. Planning appeal: The inspector allowed the landowner’s appeal against the refusal of planning permission for a wind turbine.