Berky, R (on the application of) v Newport City Council & Ors

A screening decision under the environmental impact assessment regime must give sufficient information and reasoning to enable interested persons to check that adequate screening has occurred. The court will respect the planning authority’s evaluative judgment where the relevant issues were understood and conscientiously considered. In challenges alleging bias or predetermination, the question is whether the decision-maker had a closed mind or there was a real risk of one, assessed in the practical context of democratic local government. Planning judgments concerning weight are reviewable only for Wednesbury unreasonableness. A claim may be refused on the merits even where delay is also established, to avoid prejudice caused by prolonged litigation.

The claimant, a local resident acting also for an anonymous campaigning group, sought permission to bring judicial review proceedings challenging Newport City Council’s grant of planning permission for a mixed development including a supermarket and restoration of a former workingmen’s institute.

The rolled-up hearing concerned three principal grounds: the decision not to require an environmental statement; alleged bias, apparent bias and predetermination involving a planning committee member; and an allegedly irrational approach to enabling development. The defendants also argued that the claim was out of time and had not been brought promptly. The court heard full argument on both permission and the merits.

1. Environmental statement. The screening decision had to be supported by reasoning sufficient to permit an interested person to check compliance with Directive 85/337. Newport’s terse letter expressly adopted the reasoning in the relevant GVA Grimley material, which supplied sufficient information. The court rejected the arguments that Newport had relied on later information, an impermissible “fall back” approach, defective consultation responses or a later checklist using the wrong test. The decision was rational and consistent with Circular 11/99.
2. Bias and predetermination. The remarks of Councillor Richards were capable of creating an impression of bias or predetermination and were properly criticised. However, the evidence did not establish that the committee as a whole had a closed mind or that the remark affected the other members. The decision was carried by eight votes to one. In the practical context of local democratic decision-making, the committee’s decision was not vitiated.
3. Enabling development and irrationality. The planning committee was entitled to attach exceptional weight to restoring and bringing into beneficial use a locally valued building and prominent site. It was also entitled to regard that consideration as outweighing retail-policy conflict. Questions of weight belonged to the committee, and the court could intervene only for Wednesbury unreasonableness. The failure to give greater weight to a non-statutory consultation draft was immaterial. A mistaken understanding of the ability to prevent demolition of the unlisted building was likewise insufficiently material to justify intervention.
4. Delay and disposition. The claim was not brought within three months or promptly. The court nevertheless determined the merits to prevent technical delay litigation from causing prejudice to good administration and a legitimate commercial interest. Permission for judicial review was refused. Costs submissions were invited if not agreed.

First-instance judicial review permission application dealt with on a rolled-up basis. No appellate decision is stated in the judgment.