CBRE Lionbrook (General Partners) Ltdon the application of) v Hammerson (Rugby) Ltd

A planning authority may rely on an earlier negative EIA screening opinion for a revised proposal where it reasonably concludes that the changes create no realistic prospect of a different screening outcome. Regulation 7 of the 2011 EIA Regulations gives the authority judgment in deciding whether the development has already been the subject of a screening opinion. The court reviews that judgment on Wednesbury grounds.

Retail development policies must be read in context. A strategic allocation policy is not necessarily a policy preventing development elsewhere. The sequential and impact assessments required by the NPPF involve planning judgment, including judgment about suitability, availability, timescale and likely effects on town-centre investment and vitality. A planning authority need reconsider a resolved decision only where a later factor is materially capable of changing the result.

CBRE Lionbrook challenged Rugby Borough Council’s grant of planning permission to Hammerson for the redevelopment and substantial enlargement of Elliott’s Field Retail Park outside Rugby town centre.

The claim alleged unlawful EIA screening, misapplication of the development plan and national retail policy, irrational conclusions on the sequential and impact assessments, and failure to reconsider the application after later correspondence and a Cabinet decision concerning the town-centre strategy.

The central questions were whether the original negative screening opinion remained effective for the revised proposal, whether the Council had lawfully applied the Planning and Compulsory Purchase Act 2004, the core strategy and the NPPF, and whether later events required reconsideration before the permission was issued.

1. EIA screening. The Council’s September 2011 screening opinion was clear, reasoned and legally sound. It identified the relevant Schedule 3 considerations and reached the complete judgment that the proposal was not likely to have significant environmental effects. Further technical assessments and a later noise condition did not show that the Council had deferred or avoided the screening judgment.
2. Regulation 7 of the 2011 EIA Regulations permits an authority to decide that a revised proposal has already been the subject of a screening opinion where the subsequent changes do not create a realistic prospect of a different outcome. That is a fact-sensitive planning judgment subject to Wednesbury review. The modest changes in floorspace and parking did not undermine the earlier opinion, so no fresh screening process was required.
3. Any procedural breach would not have justified relief. Applying Walton v Scottish Ministers, the court was satisfied that no person had suffered substantial prejudice and that the rights conferred by the EIA regime had been enjoyed in practice. Quashing would therefore have been neither necessary nor proportionate.
4. The Council lawfully applied the development plan. Policy CS1 adopted a broad hierarchy and did not exclude out-of-centre development. Policy CS8 was an allocation policy, not a prohibition on other retail development. Policy CS13 did not apply to the proposed development. The NPPF was a material consideration and did not become part of the development plan. The Council therefore complied with section 38(6) of the Planning and Compulsory Purchase Act 2004.
5. The sequential test and impact assessment involved planning judgment. The Council was entitled to assess availability over five years, having regard to the urgency of stemming retail expenditure leakage, and to conclude that the Evreux Way and North Street sites were not suitable and available within that period. It was also entitled to assess the redevelopment by reference to the existing retail park, while considering increased attractiveness and turnover through a sensitivity test.
6. The Cabinet’s later plan-making decision and the letter of 17 June 2013 did not create new material considerations requiring reconsideration. The relevant strategic review had already been identified to the committee, and the letter merely confirmed intentions already represented before the decision. It did not establish a viable, deliverable scheme within the relevant timescale. The claim was dismissed.