Loader, R (on the application of) v Secretary of State for Communities and Local Goverment & Ors

For Schedule 2 development, the statutory question is whether the project is likely to have significant effects on the environment. It is not enough that an environmental effect might influence the development-consent decision.

The assessment is a planning judgment made by the competent authority on the information available and by reference to statutory criteria. The authority must have regard to the precautionary principle and to uncertainty. Where uncertainty prevents a reliable negative screening conclusion, an environmental impact assessment may be required. Otherwise, proposed mitigation or remedial measures may be considered. Judicial review is on conventional Wednesbury principles.

The appellant sought judicial review of the Secretary of State’s screening direction that redevelopment of a bowls-club site for sheltered apartments, parking and replacement bowls facilities was not environmental impact assessment development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

The proposal was a Schedule 2 urban-development project exceeding the relevant size threshold. The Inspectorate nevertheless concluded, having considered the Schedule 3 criteria, that it was not likely to have significant environmental effects. Lloyd Jones J refused to quash that direction: [2011] EWHC 2010 (Admin).

On appeal, the central issue was the meaning of “likely to have significant effects on the environment”, including the relevance of the precautionary principle at the screening stage.

1. Appeal dismissed. The governing question under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 was whether the project was likely to have significant environmental effects. The appellant’s proposed test—whether an environmental effect had a real prospect of influencing the development-consent decision—did not answer that statutory question.

2. The assessment required a planning judgment by the competent authority, focused on the particular project and the statutory selection criteria. Planning authorities have a degree of freedom in making that appraisal. The court’s review is on conventional Wednesbury principles.

3. The authority must take account of the precautionary principle and the uncertainty concerning environmental impact at the date of screening. In some cases, uncertainty may mean that a negative screening decision cannot properly be made. Subject to that qualification, proposed mitigation or remedial measures may be considered if the information permits a reliable judgment.

4. The screening checklist was completed, the decision gave adequate reasons, and the Inspectorate was entitled to conclude that this redevelopment would not have significant environmental effects. Full information was available after consideration of the planning issues, rather than only at an early and uncertain stage. Lord Justice Toulson and Lord Justice Sullivan agreed.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the refusal of judicial review: [2012] EWCA Civ 869.

• High Court, Administrative Court: Lloyd Jones J refused the application to quash the Secretary of State’s screening direction: [2011] EWHC 2010 (Admin).