Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
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Key cases cited
20 authorities cited.
- Walton v Scottish Ministers [2013] Env. L.R. 16
- Morge (FC) v Hampshire County Council [2011] UKSC 2
- Berkeley v Secretary of State for the Environment [2001] 2 AC 603
- City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447
- Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759
- Watson, R (on the application of) v London Borough of Richmond Upon Thames & Ors [2013] EWCA Civ 513
- Evans, R (on the application of) v Secretary of State for Communities and Local Government & Ors [2013] EWCA Civ 114
- Bowen-West v Secretary of State for Communities and Local Government [2012] Env. L.R. 22
- Bateman, R (on the application of) v South Cambridgeshire District Council & Anor [2011] EWCA Civ 157
- Dry, R (on the application of) v West Oxfordshire District Council [2010] EWCA Civ 1143
- Catt, R (on the application of) v Brighton & Hove City Council & Anor [2007] EWCA Civ 298
- R. (on the application of Jones) v Mansfield District Council [2004] Env. L.R. 21
- Borough of Telford and Wrekin & Anor v Secretary of State for Communities and Local Government [2013] EWHC 1638 (Admin)
- R (Lebus) v South Cambridgeshire DC [2002] EWHC 2009 (Admin)
- R. (on the application of Loader) v Secretary of State for Communities and Local Government [2013] Env. L.R. 7
- Tesco Stores Ltd v Dundee City Council [2012] 2 P & CR 162
- R. (on the application of Hinds) v Blackpool Borough Council [2012] JPL 1365
- Kides v South Cambridgeshire District Council [2002] 1 P & CR 19
- R v Mendip District Council, Ex p Fabre (2000) 80 P & CR 500
- R. v Selby District Council, ex parte Oxton Farms [1997] E.G. 60 (C.S) (C.A., 18 April 1997)
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Cases citing this case
5 later cases · 4 positive · 1 caution
Most senior citing decisions:
- Warners Retail (Moreton) Ltd v Cotswold District Council & Ors [2016] EWCA Civ 606 applied
- Rodmersham Parish Council, R (on the application of) v Swale Borough Council [2026] EWHC 2381 (Admin) applied
- Patrick Hardcastle, R (on the application of) v Buckinghamshire Council [2022] EWHC 2905 (Admin) applied
- Swire v Ashford Borough Council [2021] EWHC 702 (Admin)
- Lee Valley Regional Park Authority v Epping Forest District Council [2015] EWHC 1471 (Admin)
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