Aston & Anor vThe Secretary of State for Communities And Local Government & Ors

A screening opinion under the environmental impact assessment regime is akin to an exercise of planning judgment. It may be quashed on classic Wednesbury grounds, but the threshold is high. The opinion must be read reasonably and as a whole. A decision-maker need not refer expressly to every consideration taken into account.

Fairness at a planning inquiry does not ordinarily require oral cross-examination. The inspector has a broad procedural discretion, subject to fairness and relevance. Whether cross-examination is required depends on all the circumstances, including the importance of the evidence and the likely utility and cost of further inquiry time.

The expression major development in national planning policy takes its meaning from the policy context and is not automatically governed by procedural definitions elsewhere.

The claimants challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing an appeal against the non-determination of an application for 14 dwellings in the Surrey Hills Area of Outstanding Natural Beauty.

Four grounds were advanced: unlawfulness of the environmental impact assessment screening opinion; failure to address planning-policy, prematurity and sustainability arguments; procedural unfairness in refusing flood-risk cross-examination; and misinterpretation of major development in the National Planning Policy Framework.

1. Claim dismissed. The screening opinion was not unlawful. The local planning authority identified the potentially applicable Schedule 2 category, recognised that the site was in a sensitive area, and addressed the proposed development’s nature, size and location. The opinion had to be read reasonably and as a whole. Its imperfect wording did not demonstrate an error of approach sufficient to invalidate it. The authority was entitled to consider the site’s long-standing reserve-housing designation and relevant planning guidance. The absence of an express reference to every Schedule 3 criterion did not establish that those criteria had been ignored.
2. The court assumed, consistently with R (Burridge) v Breckland District Council & Another [2013] EWCA Civ 228, that the claimants could wait to challenge the screening opinion until the planning permission was granted. Even if the opinion had been unlawful, the evidence showed that a lawful screening exercise would inevitably have concluded that the development was not EIA development. The court therefore addressed, but did not need finally to decide, the scope of Regulation 9(2).
3. The inspector had not failed to consider material planning matters or to give adequate reasons. His treatment of housing-land supply, reserve housing land and the relevant development-plan policies sufficiently explained why the objections based on policy conflict and prematurity were rejected. Planning policies were properly considered as a package rather than in isolation.
4. The refusal to permit further cross-examination on flood risk was fair and within Rule 16. The inspector had heard the claimant’s evidence, received a written response and had the relevant consultation material. Flood risk was not relied on by the local planning authority or expert consultees as a reason to refuse permission, and the inspector was entitled to regard further cross-examination as unlikely to affect the result and likely to prolong the inquiry. Bushell v Secretary of State for the Environment [1981] AC 75 supported that approach. Nicholson v Secretary of State for Energy and Another [1978] 76 LGR 693 was materially distinguishable because the evidence there went to the heart of the decision.
5. The phrase major development in paragraphs 115 and 116 of the NPPF had to be construed in its policy context. The procedural definition in the Town and Country Planning (Development Management Procedure) Order 2010 was not automatically imported into the NPPF. The inspector was entitled to conclude that 14 dwellings did not constitute major development in its ordinary, contextual sense.