Gregory v Welsh Ministers & Ors

Where an appeal raises a reasonably arguable question whether a planning application may require environmental impact assessment, the inspector must refer that question to the Welsh Ministers under regulation 9(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The inspector must not determine the appeal, other than by refusing permission, before receiving a screening direction. A local planning authority’s negative screening opinion does not conclusively determine that environmental impact assessment is unnecessary. The statutory scheme deliberately gives conclusive effect to positive screening opinions, but not to negative ones, so that environmental protection is not lost through an erroneous local decision. A planning permission granted in breach of this jurisdictional requirement is liable to be quashed.

Victoria Glynne Gregory challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing Owen Rowlands’s section 78 appeal and granting planning permission for two wind turbines on Anglesey. The local planning authority had failed to determine the application within the prescribed period. It had previously issued a negative screening opinion under regulation 5, stating that environmental impact assessment was not required. No screening direction had been made by the Welsh Ministers. The central issue was whether regulation 9(2) prevented the inspector from determining the appeal without first obtaining such a direction.

1. Application granted. The inspector’s decision was quashed because he had no jurisdiction to allow the appeal and grant planning permission before receiving a screening direction.
2. Regulation 9(2) required the inspector to ask whether the application might be an EIA application. If that possibility arose, he had to refer the question to the Welsh Ministers and could not determine the appeal, except by refusing planning permission, until the direction was received. The inspector either failed to ask that question or impermissibly answered the different question whether EIA was in fact required.
3. The proposed wind farm was Schedule 2 development. In the circumstances, the only sensible answer to whether the application might be an EIA application was that it might be one. The inspector therefore usurped the function assigned to the Welsh Ministers as the competent authority under Article 1(3) of Council Directive 85/337/EEC.
4. The local authority’s negative screening opinion did not determine that the development was not EIA development. Regulation 4 gave conclusive effect to a screening direction and to a positive local screening opinion, subject to a screening direction, but did not give equivalent effect to a negative opinion. That deliberate distinction ensured that environmental impact assessment would not be lost merely because the local authority considered it unnecessary.
5. A quashing order was appropriate. The decision had been taken in excess of power and bypassed the competent authority and the ministerial scrutiny required by the statutory scheme.

The local planning authority failed to determine the planning application within the prescribed period. Owen Rowlands appealed to the Welsh Ministers under section 78 of the Town and Country Planning Act 1990, and the appeal was transferred to an inspector, who granted planning permission. The Administrative Court quashed that decision on the claimant’s section 288 application.