Summary
Environmental impact assessment screening is an essentially fact-finding exercise involving judgment on the likelihood and significance of environmental effects. The precautionary approach informs that exercise, but review remains subject to ordinary Wednesbury principles. The decision-maker must consider the project as a whole, relevant cumulative effects and any integral stages of a larger scheme. Likelihood means a serious possibility.
A challenge based on omitted cumulative effects requires objective evidence of a potentially significant effect attributable at least in part to the project. Speculation about uncertain future development is insufficient. Under section 38(6) of the Planning and Compensation Act 2004, departure from development-plan policy is lawful where the conflict is acknowledged and clear, sound reasons show that material considerations justify permission.
Factual background
John and Sandra Hockley sought judicial review of Essex County Council’s June 2012 planning permission for a waste transfer station near their home. They alleged that the proposal required environmental impact assessment and that the Council had unlawfully departed from Policy GD8 of the Uttlesford Local Plan.
The claim had been joined to an earlier challenge concerning a related resource management centre, but that earlier permission had been quashed after the Council submitted to judgment. The issues were whether the screening opinion unlawfully omitted cumulative effects or involved project splitting, and whether the reasons for departing from Policy GD8 were legally adequate.
Held
The claim was dismissed.
Environmental impact assessment
- The court held that screening is an essentially fact-finding exercise requiring judgment on the likelihood and significance of environmental effects. The precautionary approach informs screening, but the court must apply ordinary public law principles and the conventional Wednesbury standard. The court relied particularly on R. (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114 and R. (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869.
- Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the screening decision-maker had to consider the project in its entirety, development which might combine with it to cause significant effects, and any integral section or stage of a larger project. The relevant likelihood threshold was a serious possibility, as explained in R. (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157.
- The screening opinion was sufficiently informed and reasoned. It identified the relevant Schedule 2 thresholds and assessed discharges, emissions, noise, traffic and odour. The correct annual throughput was 29,400 tonnes, not double that figure, because throughput meant the quantity passing through the facility.
- The waste transfer station was a stand-alone project. Future junction improvements, a possible civic amenity site and other local developments were not shown by objective evidence to be capable of producing significant cumulative effects attributable in part to this proposal. It was therefore neither necessary nor appropriate to speculate about them. The claimants had not established an unlawful omission or project splitting.
Departure from Policy GD8
Section 38(6) of the Planning and Compensation Act 2004 required the application to be determined in accordance with the development plan unless material considerations indicated otherwise. The conflict with Policy GD8 was expressly acknowledged and placed in the planning balance. The allocation for a civic amenity site and depot did not prohibit every other waste use. The Council was entitled to regard the proposed waste transfer station as a similar use, but permission was ultimately justified on the proposal’s own merits, having regard to its effects, benefits and conditions. The reasons were clear and lawful.
The court’s approach to earlier authorities
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Key cases cited
15 authorities cited.
- Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13
- City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447
- Evans, R (on the application of) v Secretary of State for Communities and Local Government & Ors [2013] EWCA Civ 114
- Loader, R (on the application of) v Secretary of State for Communities and Local Goverment & Ors [2012] EWCA Civ 869
- Bowen-West v Secretary of State for Communities and Local Government & Ors [2012] EWCA Civ 321
- Bateman, R (on the application of) v South Cambridgeshire District Council & Anor [2011] EWCA Civ 157
- Brown, R (on the application of) v Stobart Air Ltd [2010] EWCA Civ 523
- Boggis & Anor v Natural England & Anor [2009] EWCA Civ 1061
- R. (on the application of Jones) v Mansfield District Council [2004] Env. L.R. 21
- R (Mellor) v Secretary of State for Communities and Local Government Case C-75/08
- Ecologistas en Acción-CODA v Ayuntamiento de Madrid Case C-142/07
- Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2005] 2 C.M.L.R. 31
- Commission v Spain [2004] E.C.R. I-08253
- Commission v Italy [2004] E.C.R. I-5975
- Horsham District Council v Secretary of State for the Environment [1992] 1 P.L.R. 81
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Cases citing this case
9 later cases · 6 positive · 1 neutral · 2 caution
Most senior citing decisions:
- Kenyon v The Secretary of State for Housing Communities & Local Government [2020] EWCA Civ 302 applied
- Hilltop Experiences Limited, R (on the application of) v Norfolk County Council [2025] EWHC 1447 (Admin) considered
- BW Farms Limited, R (on the application of) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 217 (Admin) followed
- Patrick Hardcastle, R (on the application of) v Buckinghamshire Council [2022] EWHC 2905 (Admin)
- SALLY HOUGH (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2022] EWHC 1635 (Admin)
- Swire, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin)
- Kenyon, R (On the Application Of) v Wakefield Council & Ors [2018] EWHC 3485 (Admin)
- Cairns, R (On the Application Of) v Hertfordshire County Council [2018] EWHC 2050 (Admin)
- Commercial Estates Group Ltd v Secretary of State for Communities And Local Government & Ors [2014] EWHC 3089 (Admin)
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