Warley, R (on the application of) v Wealden District Council

In deciding whether a proposal is within Schedule 2 to the Town and Country Planning Environmental Impact Assessment England and Wales Regulations 1999, a planning authority must first construe the statutory description correctly. Expressions such as “urban development projects” are broad and inclusive; listed examples are descriptive, not exhaustive or limiting. The authority must then decide whether the proposal is likely to have significant environmental effects. That factual application is reviewable only for irrationality. A change to an existing development must be assessed by considering the likely environmental effects of the development as modified, including effects arising from its use. A planning condition permitting material variations through an unspecified written approval mechanism is unlawful where it leaves the scope of the permission uncertain and bypasses the statutory planning process.

The claimant, a local resident, sought judicial review of the defendant council’s grant of planning permission for nine floodlighting columns at Wadhurst Tennis Club, within the High Weald Area of Outstanding Natural Beauty. Permission to proceed was granted on the environmental impact assessment issue and a conditions issue. The council conceded that one part of the conditions challenge need not be pursued.

The central questions were whether the council had lawfully concluded that the floodlighting proposal was outside Schedule 2 to the 1999 Regulations, and whether conditions regulating the lighting and its hours of operation were lawful.

1. The claim succeeded. The planning permission was quashed in its entirety because the council’s decision on the EIA issue was vitiated by errors of law.

2. The court adopted a two-stage approach. First, it asked whether the planning authority had misunderstood the statutory language. That was a question of law for the court. Secondly, where the authority had correctly understood the law but applied an imprecise statutory description to the facts, the court could intervene only if the conclusion was irrational. This approach was consistent with Goodman, R (on the application of) v London Borough of Lewisham [2003] EWCA Civ 140 and Wye Valley Action Association Ltd, R (on the application of) v Herefordshire Council [2011] EWCA Civ 20.

3. The council officer had asked the wrong legal questions. Paragraph 10(b) of Schedule 2 was expressly inclusive. The listed forms of urban development were examples, not limits. The officer had wrongly treated the proposal as outside Schedule 2 because it was a minor lighting project, because it did not resemble the listed examples, because recreational development was addressed elsewhere, and because the site had previously been recreational land.

4. For paragraph 13, the authority also needed to assess the overall consequences of the change to the existing development. That included effects arising from the more extensive use of the sports facility enabled by floodlighting, such as additional effects on parking and other environmental matters. No adequate analysis had been undertaken.

5. The court rejected the challenge to the mitigation condition. The 12-month period concerned the power to require corrective works after installation; the obligation to retain and maintain the measures continued thereafter. However, the tailpiece in condition 2, allowing the hours of operation to be varied by written approval without defined criteria or a statutory process, was unlawful. It could be severed from condition 2, but the EIA errors independently required the permission to be quashed.

First-instance judicial review proceedings. Permission to proceed was granted by Lindblom J on 14 February 2011.