U & Partners(East Anglia) Ltd, R (on the application of) v The Broads Authority

Environmental effects relevant to an Environmental Impact Assessment screening decision include indirect effects which are part of the development scheme, even where those effects do not themselves require planning permission. Both significant adverse and beneficial effects must be considered. Developments may generally be assessed separately, unless their effects are factually linked. An adverse effect on neighbouring land is ordinarily a material planning consideration. An alternative proposal may also be relevant where the challenged proposal gives rise to clear planning objections and the alternative may overcome them. Although judicial review claims must be brought promptly, a strong case that a planning permission is ultra vires may justify permission despite delay.

The claimant challenged the defendant planning authority’s grant of permission for an Environment Agency flood-defence crosswall forming part of the Broadland Flood Alleviation Project. The proposed works protected land and SSSIs to the south but involved abandoning maintenance of existing defences around the claimant’s arable land, increasing its flooding risk.

The claimant alleged failures under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, failure to consider the flooding and farming consequences as material planning considerations, failure to consider an alternative scheme, and inadequate reasons. The defendant did not defend the claim. The Environment Agency resisted it. The court also considered whether the claim had been brought promptly under CPR 54.5.

1. Permission and merits. Permission was granted and the claim succeeded. The planning permission was ultra vires and was quashed.
2. The proposed development had to be assessed purposively. Its effects included the indirect but foreseeable consequence of abandoning the existing defences and increasing the risk of flooding to the claimant’s land. That consequence formed part of the scheme being advanced and could not be disregarded merely because abandonment was not itself development requiring planning permission.
3. Both adverse and beneficial environmental effects had to be considered. The screening opinion failed to address the significant beneficial effects for the SSSIs and other protected land, as well as the adverse flooding consequences. The mistaken assessment of the area of the works was also material.
4. Each compartment of the flood-alleviation project could ordinarily be considered separately. However, linked developments had to be considered cumulatively where their effects should, as a matter of fact, be treated as connected. The court indicated that an assessment of Phases 1 and 2 together would probably be prudent.
5. The committee had been wrongly advised that the effect on the claimant’s land was not a planning consideration. An adverse effect on neighbouring land resulting from development will normally be material. The claimant’s alternative scheme could also be relevant because the application raised clear planning objections, including access difficulties and flooding risk.
6. The claim was not brought promptly. Nevertheless, the strength of the ultra vires challenge justified permission. Following Uniplex, a discretionary promptness requirement could not prevent a claim brought within the three-month period where Community law required a certain and predictable limitation period. Section 31(6) of the Senior Courts Act 1981 could not assist because it applied only where there had been undue delay.
7. The court declined to extend the Uniplex approach to challenges unrelated to the Directive. In such cases CPR 54.5 and Finn-Kelcey continued to govern promptness.

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