Burridge v Breckland District Council

Functionally interdependent proposals forming one specific and integrated development must be considered together when deciding whether the environmental impact assessment screening threshold is crossed. Separate planning applications do not permit a planning authority to screen each component in isolation.

The authority must conduct the screening exercise and adopt the written screening opinion required by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. By a majority, however, a failure to record the opinion in writing does not invariably invalidate the resulting permission. Exceptionally, permission may stand where effective screening occurred, a valid conclusion was reached that the development was not EIA development, and the only defect was the omission of the written statement.

The appellant sought judicial review of two permissions granted by Breckland District Council for a renewable energy plant and a functionally interdependent combined heat and power plant connected by a pipeline. Although the proposals were submitted as separate applications, they were cross-referenced and determined together. An earlier version of the renewable energy proposal had received a negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, but no further written opinion was adopted for the revised integrated development.

His Honour Judge Waksman QC, sitting as a High Court judge, refused to quash the permissions in [2012] EWHC 1102 (Admin). The central questions on appeal were whether the two applications had to be treated as one development for screening purposes, whether the pipeline independently crossed the applicable threshold, and whether the failure to adopt a further written screening opinion invalidated the permissions.

1. Appeal dismissed by a majority. Davis LJ and Warren J held that the permissions should remain in force. Pill LJ dissented and would have allowed the appeal and quashed both permissions.

2. The court unanimously held that the two applications concerned one specific, integrated development. They were functionally interdependent, expressly linked, cross-referenced in the officers’ reports and considered together by the planning committee. Regulation 7(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 had to be interpreted consistently with the purpose of Council Directive 85/337. The reference to “an application” did not permit components of a single development to be screened separately merely because they appeared in separate applications. The combined development crossed the Schedule 2 threshold and required screening: paras 40–47, 74–80 and 96–104.

3. The second ground was dismissed. The ten-metre pipeline corridor shown on the application plan provided flexibility in selecting the route. It did not establish that the pipe and the works required to install it would occupy that full width. The “area of the works” depended on the area actually required for construction, rather than the whole precautionary corridor: paras 81–82 and 105.

4. The council was required to consider the environmental effects of the revised overall development and adopt a written screening opinion stating whether it was EIA development. Its failure to produce that statement breached the 1999 Regulations: paras 111–115.

5. By a majority, that breach did not vitiate the permissions on the exceptional facts. The responsible officer had previously prepared an unchallenged screening opinion and had subsequently considered every material change, including relocation of the power plant, the pipeline and additional equipment. The judge was entitled to find that this was effective screening rather than retrospective rationalisation. The officer validly concluded that the combined development would not have significant environmental effects; his only failure was to record that conclusion in the required written form. Whether a screening defect invalidates permission depends on the facts, although failure will ordinarily be a serious flaw: paras 83–92 and 106–122.

6. Pill LJ considered the written screening opinion an essential and discrete procedural stage which could not be supplied by a later witness statement. He would also have relied on the Secretary of State’s subsequent screening directions as a further reason to quash: paras 47–69.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal in [2013] EWCA Civ 228 . The court unanimously held that the linked applications comprised one development requiring screening, but the majority held that the omission of a written screening opinion did not invalidate the permissions on the exceptional facts.
2. Administrative Court: His Honour Judge Waksman QC granted permission to apply for judicial review but refused the substantive application in [2012] EWHC 1102 (Admin) .