Jedwell v DH & Anor

A negative environmental impact assessment screening opinion must give sufficient information to show that the authority has addressed the relevant environmental effects and to explain why an assessment is unnecessary. A bare conclusion is inadequate. Where reasons are requested, European Union law requires their communication in time to enable an interested person to decide whether to bring proceedings.

Cross-examination in judicial review remains unusual, but it must be permitted where justice requires testing whether late evidence records the decision-maker’s actual reasoning or is an after-the-event reconstruction. A procedural breach does not automatically require quashing. The court retains the discretion identified in Champion.

The Council granted planning permission for two wind turbines near several protected landscapes. Before doing so, it issued a negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, stating only that the proposal would not have significant environmental effects.

A local resident sought judicial review. Foskett J dismissed the claim, holding that the initial reasons were inadequate but that a later witness statement by the planning officer cured the defect. He also refused permission to cross-examine her.

The appeal concerned the adequacy and timing of reasons for the negative screening opinion, the admissibility and testing of the officer’s later evidence, and whether the planning permission should be quashed. The first-instance decision was [2014] EWHC 1633 (Admin).

Appeal allowed in part. The case was remitted to the Administrative Court to determine, after cross-examination, whether the planning officer’s witness evidence accurately recorded her reasoning when the negative screening opinion was made.

1. The original screening opinion was inadequately reasoned. It stated only the Council’s conclusion and did not explain why the proposal was thought unlikely to have significant environmental effects. The Council had to show that it had actually determined the EIA question by applying its own mind to the relevant matters. Later references to consultees’ views and to cumulative impact did not demonstrate how the officer had reached that conclusion.
2. The solicitors’ letter of 1 May 2013 was a valid request for further reasons under R (Mellor). The Council’s response did not cure the deficiency. By the time the claim form was issued, the Council was in breach of its European Union law duty to provide adequate reasons in response to that request. The court indicated that reasons should ordinarily be supplied within a reasonable time and may potentially cure a deficiency if provided before proceedings begin.
3. The late witness statement was not excluded on appeal, because its admissibility had not been challenged below. It could in any event be relevant to the court’s discretion whether to quash planning permission. A procedural breach did not require automatic quashing: the applicable principles were those in R (Champion) v North Norfolk District Council [2015] UKSC 52.
4. The judge adopted the wrong approach to cross-examination. The decisive question was whether justice required it, not whether the claimant could prove the witness’s account manifestly wrong without testing it. The absence of contemporaneous reasons and the discrepancies requiring exploration made this one of the rare judicial review cases where cross-examination was necessary for a fair determination.
5. The court rejected the separate argument that the low threshold discussed under article 6(3) of the Habitats Directive should be read across to EIA screening. The directives had different objectives, and the Court of Justice had not endorsed the Advocate General’s observations in Sweetman.

• Court of Appeal (Civil Division): Allowed the appeal in part and remitted the case to the Administrative Court for determination after cross-examination: [2015] EWCA Civ 1232.
• Administrative Court: Foskett J rejected the judicial review challenge to the planning permission: [2014] EWHC 1633 (Admin).