Howard & Anor v Wigan Council

In deciding whether a proposed Schedule 2 development requires environmental impact assessment, the planning authority must ask whether it is likely to have significant effects on the environment and apply the prescribed criteria to the particular circumstances. The authority may take proposed remedial measures into account, even where some details remain uncertain, provided that it has sufficient information to reach a rational conclusion. The assessment involves planning judgment or opinion. A challenge is reviewed on Wednesbury principles, and the weight given to material considerations is for the decision maker. A screening opinion will withstand challenge where the authority has properly considered the environmental information and given adequate reasons.

The claimants challenged Wigan Council’s grant of full planning permission for 39 dwellings at land near Herons Wharf, Appley Bridge. The remaining issue in Claim 2 was whether the Council’s screening opinion, which concluded that the proposal was not EIA development under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, was unlawful. The claimants relied on alleged uncertainties concerning contamination, including possible anthrax contamination, and the adequacy of proposed remediation.

The court also dismissed Claim 1 as academic after Claim 2 failed. The central issue was whether the screening opinion applied the correct legal test, properly considered the available environmental information and gave adequate reasons.

1. Claim 2 dismissed. Permission to pursue the screening-opinion ground was refused because the challenge was not arguable. Claim 1 was academic and was also dismissed.
2. The governing question was whether the project was likely to have significant effects on the environment. The criteria in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, including Schedule 3, had to be applied by exercising judgment in the circumstances of the particular case. The assessment was an exercise of planning judgment or opinion.
3. The decision maker was entitled to take proposed remedial measures into account. Uncertainty, or the fact that further surveys or details remained outstanding, did not necessarily prevent a rational conclusion that significant environmental effects were unlikely. The question depended on the circumstances and the information available.
4. The weight given to material considerations was for the planning decision maker. The court’s review of a screening opinion was on Wednesbury principles.
5. Read as a whole, the screening opinion showed that the officer had considered the contamination history, technical investigations, consultation responses and remediation proposals. The proposed measures, including removal or treatment of contaminated soil and capping, were capable of addressing the identified risks. The statutory consultees had raised no concern about effective remediation.
6. The Council had applied the correct test, had regard to material information, reached a conclusion that was not arguably perverse, and gave adequate reasons. The additional challenge alleging materially false sampling evidence had already been refused permission. Costs were reserved for a later hearing or determination on paper.

First-instance judicial review claims. No prior appellate decision is stated in the judgment.