Gilbert, R (On the Application Of) v Secretary of State for Communities And Local Government & Anor

In screening Schedule 2 development for environmental impact assessment, the decision-maker must ask whether the project is likely to have significant effects on the environment. The assessment requires judgment in the circumstances of the particular proposal, having regard to the Schedule 3 criteria, the precautionary principle and any material uncertainty. Proposed conditions or mitigation may be taken into account where their likely effectiveness can be assessed with sufficient confidence. The decision-maker must consider cumulative effects and provide intelligible reasons showing that the environmental effects were properly considered. The court will intervene only on orthodox public-law grounds, including failure to ask the right question, failure to obtain relevant information, inadequate reasons or irrationality.

The claimant sought judicial review of a Screening Direction made by the Secretary of State under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 and of planning permission granted by Harborough District Council. The permission made permanent several vehicular uses at Bruntingthorpe Proving Ground which had previously been authorised temporarily, subject to noise and other controls.

The claimant argued that the Secretary of State had failed to apply the precautionary principle, consider cumulative noise effects and give adequate reasons. The court therefore considered whether the information before the Secretary of State justified a negative EIA screening conclusion and whether the Screening Direction and accompanying checklist adequately explained that conclusion.

1. Outcome. The claim was dismissed. The court refused permission to appeal. The claimant was ordered to pay the Secretary of State’s costs, capped at £5,000; the interested party sought no costs.
2. Applicable screening approach. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the question was whether the proposed development was likely to have significant effects on the environment. The decision-maker had to consider the relevant Schedule 3 criteria, including the accumulation of effects with other development, the existing land use, and the duration, frequency and reversibility of impacts. The precautionary principle and the degree of uncertainty at the decision date were relevant.
3. The effectiveness of planning conditions or other ameliorative measures could be taken into account where their likely effectiveness could be predicted with confidence. The fact that implementation involved some uncertainty, or that conditions were needed, did not automatically require an EIA. The starting point was the planning application actually made, namely the proposal to make permanent the specified additional vehicular uses.
4. Application. The Secretary of State had sufficient information. The material before him included the earlier planning inquiry, the Inspector’s assessment of noise and controls, the temporary operation of the permission, monitoring over two years and a summary of the environmental health evidence. Difficulties in enforcing the 40dB(A) noise cap did not undermine the underlying assessment of whether noise was likely to be significant. The limited number of recorded exceedances supported the conclusion reached.
5. The Screening Direction and checklist showed that cumulative effects, including noise, emissions and traffic congestion, had been considered. Read together, they gave clear and intelligible reasons for concluding that significant environmental effects were not likely, either individually or cumulatively. The challenge was therefore no more than a disagreement with the planning judgment reached.

Not stated in the judgment.