Hargreaves v Secretary of State for Communities and Local Government & Ors

Under Town and Country Planning Act 1990, a screening direction is ordinarily determinative of whether development is EIA development. An inspector need not reconsider that issue unless a material change, important misapprehension or other new circumstance creates at least a realistic prospect of a different conclusion. The inspector’s decision on that question is primarily one of planning judgment.

When screening, the decision-maker may consider mitigation forming part of the proposed project. Localised environmental effects may be insufficient to constitute likely significant effects on the environment, although cumulative local effects may exceptionally produce that result. Where mitigation means that a project is not likely significantly to affect a protected site, an appropriate assessment is unnecessary.

The claimant, a local resident, challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing an appeal and granting permission for two wind turbines. The challenge concerned environmental impact assessment screening, the need for an appropriate assessment under the Habitats Directive and the Conservation of Habitats and Species Regulations 2010, and procedural fairness in relation to mitigation for pink-footed geese associated with Morecambe Bay SPA.

The Secretary of State had issued a negative screening direction. The central questions were whether the inspector should have remitted that direction, whether mitigation could be considered at screening, whether an appropriate assessment was required, and whether the written-representations procedure was unfair.

1. Ground 1 dismissed. Section 288 permits a challenge to the grant of planning permission, but not a direct challenge to a negative screening direction. The inspector’s decision is treated as that of the Secretary of State for this purpose.
2. Under regulation 4(3) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, a screening direction is determinative unless the Secretary of State changes it. Following Evans v First Secretary of State [2003] EWCA Civ 1523, and the approach reaffirmed in R (Mageean) v SSCLG and others [2011] EWCA Civ 863, an inspector may invite reconsideration where an important misapprehension or material change creates a realistic prospect of a different screening conclusion. The inspector’s judgment is challengeable only on rationality grounds, and the claimant must show that any rational inspector would have remitted the matter.
3. The screening decision was not unlawful or irrational. The documents had to be read purposively and in context. Effects described as significant but local could properly be treated as insufficiently significant for EIA purposes, consistently with R (Malster) v Ipswich Borough Council [2001] EWHC 711 (Admin). The screening exercise was also entitled to consider mitigation forming part of the project. That approach was supported by R (Hart DC) v SSCLG [2008] EWHC 1204 (Admin) and R (Catt) v Brighton & Hove CC [2007] EWCA Civ 298.
4. The mitigation scheme could properly be treated as mitigating rather than compensatory. The relevant question was the effect on the integrity of the SPA, not simply the effect on individual geese. The agreed outline scheme, together with condition 12, provided a rational basis for concluding that there was no likely significant effect and that no appropriate assessment was required.
5. The remaining grounds failed. The written-representations procedure was followed, the claimant had an opportunity to comment on the mitigation scheme, and the issues relied upon were either immaterial or matters for the inspector’s planning judgment. The claim was dismissed.

First-instance judicial review challenge under section 288 of the Town and Country Planning Act 1990. The challenge to the inspector’s appeal decision was dismissed.