Evans, R (on the application of) v Secretary of State for Communities and Local Government

A decision whether proposed development is likely to have significant environmental effects, and therefore whether the EIA regime applies, is reviewable on the established Wednesbury standard. A court at first instance must apply the law as it stands and cannot depart from higher authority because a different standard of review is thought desirable in the context of European Union environmental law. Disagreement with the decision-maker’s professional assessment, including judgments about landscape, heritage, traffic or highways effects, does not itself establish an arguable error of law or irrationality. Permission for judicial review was therefore refused.

The claimant, a local resident, challenged the Secretary of State’s negative screening direction concerning a proposed housing development near Great Cornard, Suffolk. He alleged errors of fact, irrational conclusions about landscape, heritage and highways effects, misunderstanding of English Heritage advice, failure to consider cumulative effects and failure to apply the meaning of “likely” under the EIA regime.

The renewed application principally raised whether the court should adopt a more rigorous standard than Wednesbury reasonableness when reviewing an EIA screening decision, despite the approach described in Loader and supported by Berkeley.

1. Permission refused. The claimant’s grounds did not disclose an arguable error of law. The negative screening direction was not arguably unreasonable in the Wednesbury sense.

2. The court accepted the established position, as stated in Loader, that a decision whether development is likely to have significant environmental effects is reviewable only on ordinary Wednesbury grounds. The court was required to follow the law as it stood. It could not anticipate a possible change in the law or disregard higher authority because the challenge concerned European Union environmental obligations. The reasoning in Berkeley, read as a whole, supported that conclusion.

3. The alleged factual errors, illogical conclusions concerning landscape change, misunderstanding of English Heritage advice, and conclusions on traffic and highways effects were substantially disagreements with the screening officer’s professional judgment. The officer was entitled to evaluate whether the proposed works were likely to produce significant environmental effects.

4. The argument that the issue involved a jurisdictional precedent fact was also unarguable in light of the existing authorities. Since permission was refused, it was unnecessary to determine the protective costs issues.

The judgment records that permission had previously been refused on the papers by Mr Kent QC on 27 February, after which the claimant renewed the application. The renewed application was refused by the High Court (Administrative Court).