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

Screening for environmental impact assessment requires a precautionary approach. A serious possibility of significant environmental effects may suffice, although a bare possibility does not. Uncertainty may prevent a negative screening decision, but disagreement among consultees does not automatically require an assessment.

Whether effects are likely and significant is essentially a fact-finding exercise involving planning judgment. A screening decision is reviewed on conventional public law principles, including the Wednesbury standard, which corresponds substantially to review for manifest error of assessment under EU law. Proportionality is inapplicable because screening determines a question of fact rather than reviewing the exercise of a discretion.

The applicant sought permission to appeal against the refusal of permission to apply for judicial review of a screening direction made under Regulation 6 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The Secretary of State had decided that a proposed development of 170 dwellings was not likely to have significant environmental effects and therefore required no environmental impact assessment.

The local planning authority had reached the opposite conclusion because of the development’s anticipated effects on the setting of a Grade I listed building and a Special Landscape Area. The Administrative Court refused permission for judicial review in [2012] EWHC 1830 (Admin).

The Court of Appeal considered whether the Secretary of State had failed to adopt a precautionary and purposive approach, whether the decision and reasons adequately addressed the environmental issues, and whether EU law required more intensive judicial scrutiny than the Wednesbury standard or a reference to the Court of Justice.

1. Permission to appeal refused. The Secretary of State had adopted the precautionary approach required when screening a Schedule 2 development. The relevant inquiry was whether there was a real or serious possibility of significant environmental effects, rather than merely a bare possibility. The unequivocal conclusion that the development would cause no significant environmental impact was at least as precautionary as the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 required: per Beatson LJ, Patten LJ and Sir Stanley Burnton agreeing.

2. The existence of differing views did not require a full environmental impact assessment. Regulation 5(6) expressly contemplated that the Secretary of State might disagree with a local planning authority’s positive screening opinion. The reasonable-doubt formulation in Waddenzee concerned doubt in the mind of the primary decision-maker; it did not mean that another person’s contrary opinion precluded a negative screening decision.

3. The assessment of the likelihood and significance of environmental effects was essentially a fact-finding exercise requiring planning judgment. The responsible officer had visited the site and considered its landscape position, the proposed screening belt, the listed building, the Special Landscape Area, the visualisation material and the views of the authority and English Heritage. The decision materials substantively addressed the Schedule 3 considerations and adequately explained the disagreement with the local authority. Their organisation under different headings disclosed no legal error.

4. The appropriate standard of judicial review was the conventional Wednesbury standard, including its established public law strands and variable intensity. The EU-law test of manifest error of assessment was substantially the same. Neither the Aarhus Convention, the Compliance Committee’s unconcluded concerns, Article 11 of the EIA Directive nor the cited Court of Justice jurisprudence required proportionality review.

5. Proportionality was inapplicable because screening involved a factual assessment rather than the exercise of a discretion directed towards an aim. Sir Stanley Burnton specifically emphasised this point. The applicant identified no European authority favouring a different standard, so the proposed reference to the Court of Justice was refused.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 114, refused permission to appeal and declined to refer questions to the Court of Justice.
2. High Court, Administrative Court: In [2012] EWHC 1830 (Admin), HHJ Mackie QC refused permission to apply for judicial review of the Secretary of State’s screening direction.