Commercial Estates Group Ltd v Secretary of State for Communities And Local Government & Ors

In screening proposed Schedule 2 development for environmental impact assessment, the decision-maker must consider relevant cumulative effects, including other development only where its occurrence is reasonably foreseeable in the applicable public-law and planning context. That expression does not bear the low tort-law threshold of a real risk that is not far-fetched. The assessment is a planning judgment, allowing a significant margin of evaluative freedom. The decision-maker need not undertake a detailed investigation or speculate about uncertain future proposals. A court will intervene only on ordinary Wednesbury principles, unless relevant and potentially significant effects were obviously overlooked or the decision could not reasonably have been reached on the material available.

Commercial Estates Group Ltd sought permission to bring judicial review proceedings against the Secretary of State’s screening direction of 13 May 2014. The direction concluded that a proposed residential development of up to 150 dwellings was not EIA development under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

The claimant argued that the Secretary of State had failed to take account of the cumulative effect of a much larger Sustainable Urban Extension proposed in an emerging Core Strategy and in a planning application. It also alleged irrationality in concluding that the larger development was not reasonably foreseeable. Permission had previously been refused on the papers, and the claimant renewed its application before the Administrative Court.

1. Permission refused. The Secretary of State had asked the correct question: whether the proposed development was likely to have significant environmental effects cumulatively with other reasonably foreseeable development in the locality.
2. The relevant framework was contained in Article 2.1 and Annex 3 of Directive 2011/92/EC, as amended, and regulations 2(1), 4(3) and 4(6), paragraph 1(b) of Schedule 3 and paragraph 10(b) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The screening exercise is directed to whether EIA is required. It is not a detailed assessment of the merits of a planning application or a full assessment of environmental effects.
3. The phrase reasonably foreseeable in the European guidance could not be transposed from its tort-law context in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1967] AC 617. The European and domestic framework requires the decision-maker to avoid conjecture and speculation, while retaining a significant degree of planning judgment. No precise alternative definition was necessary or desirable.
4. The authorities confirmed that a screening decision-maker need not resurrect the past or speculate about future proposals. A claimant challenging the omission of cumulative effects must ordinarily provide objective evidence showing that the authority knew, or ought to have known, of potentially significant effects and that a negative screening decision could not reasonably have been made if they had been considered.
5. It was rational to treat the emerging Core Strategy as uncertain. The examination had been suspended because of fundamental concerns about housing provision, soundness and the duty to co-operate. The Strategy might be withdrawn, amended and approved, or amended and found unsound. The Secretary of State was not required to conduct the detailed independent investigation urged by the claimant. The conclusion that the SUE proposal was not reasonably foreseeable was a planning judgment open to him on the evidence.
6. The applications were mutually exclusive, and there was no evidential basis for assuming that the claimant’s proposal would proceed in its present form or that additional housing would be accommodated within the existing SUE. The renewed application was therefore refused. The existing costs orders were maintained. Certification that the claim was totally without merit was refused, and the claimant was ordered to pay the Secretary of State’s costs of preparing the acknowledgment of service in the sum of £3,000 inclusive of VAT and the interested parties’ costs of £1,500 each.

Permission was refused on the papers by Lang J on 30 July 2014. The claimant’s renewed application for permission was refused by the Administrative Court.