Gibson, R (on the application of) v Harrow District Council

Where a later planning application concerns the same development in physical dimensions, characteristics and environmental impact as an earlier application, a further EIA screening assessment is unnecessary if the development has already been screened lawfully. A procedural failure to make the screening opinion publicly available does not necessarily require quashing the planning permission. The court may refuse relief where the breach caused no significant prejudice and the balance of public and private interests favours maintaining the decision.

A planning authority may regard improved public access to retained open space as “better quality provision” under London Plan policy 7.18B. It must understand the extent of any conflict with development-plan policy and may conclude that material considerations outweigh that conflict.

The claimant sought judicial review of outline planning permission granted by Harrow District Council for residential development on privately owned church land. The scheme comprised 27 dwellings and the retention of about 0.69 hectares of open space, which was to become accessible to the public through a planning obligation.

The challenge alleged failure to comply with the EIA regime and failure to have proper regard to London Plan policy 7.18B, UDP policy EP47, relevant planning-inspector decisions and evidence concerning junior cricket. The Council accepted that it had failed to place an earlier screening opinion on the register for the later application. The central issues were whether the screening arrangements were lawful and whether the Council’s planning judgment was legally flawed.

1. The claim was dismissed. The Council’s failure to place the earlier screening opinion on the register breached regulation 23 and Article 4(4), but did not justify quashing the planning permission.
2. The fourth application concerned the same development as the third application in physical dimensions, characteristics and environmental impact. Since that development had already been the subject of a screening opinion, no further screening assessment was required under regulation 7 or Article 4(2). The screening opinion was also legally adequate. A screening opinion need not be elaborate, but must show that the relevant issues were understood and considered on sufficient and accurate information. The reference to building a significant number of homes on urban open space adequately addressed the alleged impact on open space and local character.
3. Following Walton v The Scottish Ministers [2012] UKSC 44, the court had discretion to refuse relief for a breach of the Directive and Regulations where the claimant suffered no significant prejudice. The omission from the register could not realistically have affected the debate or decision, while the development had identified public benefits and the landowner was not responsible for the breach.
4. The Council had properly considered the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990. On a fair reading, the officer’s report identified the change from London Plan policy 3D.8 to policy 7.18B and advised that improved public access to retained open space could constitute “better quality provision”. The Council was entitled to treat policy 7.18B as favouring permission.
5. The Council also understood the conflict with UDP policy EP47 and was entitled to conclude that material planning considerations outweighed it. The two earlier inspector decisions were carefully reasoned and constituted a particularly strong material consideration. Reliance on the second inspector’s assessment that the retained land could support junior cricket was rational, and Sport England’s later letter had been taken into account.

First instance judicial review proceedings. The judgment does not state any prior appellate decision in this litigation.