Oldfield, R (on the Application of) v Secretary of State for the Communities and Local Government & Ors

For an environmental impact assessment screening decision, the decision-maker must consider relevant cumulative effects of the proposed development with other planned development that is sufficiently connected. Separate ownership or planning processes do not justify ignoring a related project. The assessment is made on information reasonably known and reasonably predictable at the time. If the other project remains materially uncertain, the decision-maker may conclude that no significant cumulative effects are then likely. Decision-makers must also guard against project splitting or salami-slicing. Environmental matters such as drainage may be controlled by a planning condition where they have been properly considered and can permissibly be dealt with in that way. An imperfect decision letter does not invalidate the decision where its lawful basis is clear and an erroneous additional reason is not operative.

Louise Oldfield challenged the Secretary of State’s screening direction, the Inspector’s Report and the grant of planning permission for redevelopment of the Arlington site at Margate. The proposed works included a supermarket, hotel, refurbishment, demolition and sewage infrastructure. She also challenged the decision under section 288 of the Town and Country Planning Act 1990.

The Administrative Court dismissed the judicial review and statutory appeal on 12 December 2013: [2013] EWHC 4269 (Admin). The central issues in the Court of Appeal were whether the decision-makers had unlawfully failed to assess cumulative effects with the neighbouring Dreamland redevelopment and whether the Arlington proposal had been impermissibly split to avoid the EIA regime.

The appeal was dismissed.

1. Applicable principles. The court accepted that the EIA regime has a wide scope and broad purpose, and that likely significant effects require more than a bare possibility, although any serious possibility may suffice. The screening judgment belongs to the decision-maker, subject to irrationality review. The Town and County Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 required relevant environmental information and cumulative effects to be considered.
2. Cumulative effects. The Dreamland project could not be ignored merely because it was a separate project with separate planning arrangements. The screening checklist expressly referred to Dreamland in relation to protected sites, future land uses and potential cumulative impacts. The Inspector also considered traffic, living conditions and foul and surface water disposal. It was therefore open to the Inspector and Secretary of State to conclude that there were no significant cumulative effects.
3. Information available at the time. The assessment had to proceed on what was known and reasonably predictable when the Arlington decision was made. Dreamland’s future remained uncertain because the compulsory purchase order challenge was unresolved and no planning application had been made. It was permissible to conclude that no significant cumulative effects were then likely. That conclusion did not determine the position if the Dreamland development later gathered pace.
4. Secretary of State’s decision letter. Maurice Kay LJ construed the imperfectly drafted paragraph 24, read as a whole, as preserving the lawful reasoning that the cumulative effects had been considered. Macur LJ considered the second sentence to contain an incorrect additional reason, but not an alternative basis for the decision. The first and third sentences, together with the Inspector’s reasoning, showed that the necessary assessment had been undertaken.
5. Project splitting. Decision-makers must guard against salami-slicing proposals to circumvent EIA requirements. The drainage issue had, however, been addressed at each stage. Southern Water had accepted the drainage strategy, and a planning condition requiring further details before construction was a permissible method of dealing with the issue. There was no unlawful project splitting.

• Court of Appeal (Civil Division): The appeal was dismissed on 7 November 2014.
• Administrative Court: Moses LJ dismissed the judicial review and the statutory appeal on 12 December 2013: [2013] EWHC 4269 (Admin).