Catt, R (on the application of) v Brighton & Hove City Council

Environmental impact assessment screening must address the project in its entirety. The decision-maker must identify the physical development, its construction and its intended use, without aggregating genuinely separate projects or dividing one project into artificial parts. Past uses that have ended and uncertain future proposals need not ordinarily be included.

The authority must consider direct, indirect and cumulative effects, applying the statutory criteria. Whether effects are likely to be significant is principally a planning judgment, reviewable on conventional Wednesbury grounds. Local effects may nevertheless be significant, depending on their nature and location. A defective screening process before planning permission cannot be retrospectively cured by a later screening opinion. Relief may nevertheless be withheld in the court’s narrow discretion where the project did not require EIA and no substantial prejudice has resulted.

The claimant challenged three planning permissions granted by Brighton & Hove City Council for development at the Withdean Stadium site. The first permission, granted on 8 August 2011, followed a screening opinion which the Council accepted was flawed. A further screening opinion in October 2011 concluded that EIA was unnecessary.

Two further permissions were granted on 21 December 2012 after fresh screening opinions concerning retention of existing facilities and an extension to the sports centre. The claimant alleged that the Council had failed to assess the project as a whole, split the project into separate parts, misjudged the significance of environmental effects, relied unlawfully on Circular 02/99, and used mitigation measures improperly. The central issues were whether the screening exercises were lawful and whether the first permission could be preserved despite the admitted defect.

1. Project identification. The authority must begin with an accurate understanding of the project. It must consider nothing less and nothing more than the development in its entirety. It must avoid both aggregating genuinely separate projects and subdividing a single project into artificial components. The applicant’s strategy in making one or several applications does not determine the answer.
2. The project will not generally include development whose use has ended or which has been removed. Nor will it ordinarily include uncertain future proposals. The 2012 applications together formed the project to be screened, but the later Masterplan options were too uncertain in content, timing and prospects of implementation.
3. Environmental effects. Screening must address the project’s direct, indirect, secondary and cumulative effects, including effects arising from the use and exploitation of the completed development. The Council’s October 2011 and 2012 screening opinions considered the whole project and relevant impacts, including noise, light, traffic, air quality, visual effects and local living conditions. They were not irrational.
4. Whether effects are likely to be significant is a planning judgment for the authority. The court reviews that judgment on conventional Wednesbury grounds, reading the screening opinion fairly as a whole. A local effect may be significant, but its geographical extent is a relevant Schedule 3 consideration.
5. The Council did not unlawfully rely on Circular 02/99. Nor did it unlawfully rely on mitigation. The proposed controls formed part of the design of the development itself and were not uncertain conditions or undertakings used as a substitute for EIA.
6. The August 2011 permission was unlawfully granted because the June 2011 screening opinion assessed only the proposed changes rather than the development as changed. A later lawful screening opinion could not retrospectively cure that defect. However, the project was not EIA development, the later permissions followed lawful screening, and no substantial prejudice had resulted. The court therefore exercised its narrow discretion not to quash the August 2011 permission. Permission to apply for judicial review was granted in the second claim, but the claim was dismissed; all three challenges failed.