Mackman v The Secretary of State for Communities And Local Government Uttlesford District Council Redrow Homes (Eastern) Ltd

A screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England) Regulations 2011 need not contain the detail of a planning appeal decision or a full assessment of environmental effects. It must provide enough information to show that possible environmental effects were properly considered and to make the reasons intelligible.

Whether an unmentioned factor, including cumulative impact, was considered is assessed from the opinion as a whole and in its planning context. Reasons are judged by reference to the particular development and the complexity and borderline nature of the issues. Brief reasons may suffice for a straightforward, non-borderline proposal where no matter calls for further explanation.

Redrow Homes (Eastern) Ltd sought outline planning permission for 73 dwellings on land north of Ongar Road, Great Dunmow. Uttlesford District Council issued a negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England) Regulations 2011. An Inspector allowed Redrow’s appeal under section 78 of the Town and Country Planning Act 1990 and granted conditional planning permission.

Mackman challenged the Inspector’s decision under section 288 of the 1990 Act, arguing that the screening opinion failed to consider cumulative impact and did not give full, clear and precise reasons. Lang J dismissed the application: [2013] EWHC 3396 (Admin). The central issue on appeal was whether the screening opinion was unlawful.

1. Appeal dismissed. Sullivan LJ gave the judgment, with Patten LJ and Roth J agreeing. The Inspector’s decision itself was not criticised. The issue was whether the planning permission had been preceded by a lawful screening opinion.
2. Cumulative impact. A screening opinion must be read as a whole and in a common-sense manner. Linguistic analysis is required, but it must not be conducted in a vacuum. The context in which the opinion was prepared is relevant, including the officer’s role, the planning process, relevant guidance and the material available to the authority. The absence of an express reference to cumulative impact or to every Schedule 3 factor does not establish that the factor was ignored. Here, the officer knew of the nearby developments, followed Circular 02/99 and adopted the structure of Schedule 3. On a fair reading, she had considered the relevant matters, including cumulative impact, and identified visual impact as the only matter potentially capable of justifying an EIA. No irrationality challenge was made to that planning judgment.
3. Adequacy of reasons. Regulation 4(7)(a) imposes a demanding obligation to give full reasons. However, a screening opinion is a preliminary decision, commonly made on incomplete information, and is not equivalent to a planning appeal decision or a full environmental assessment. As explained in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157, the reasons must enable interested persons to see that possible environmental effects were properly considered and to understand the decision. The required level of detail depends on the complexity of the particular application. Unlike Bateman, this was not a complex or borderline case, and the brief reasoning was adequate.
4. Alternative discretion. The court accepted that, if inadequate reasons had made the screening opinion unlawful, the challenge would fall within section 288(1)(b)(i) of the Town and Country Planning Act 1990, without a requirement to establish substantial prejudice under section 288(5)(b). Nevertheless, the court would have refused to quash in its discretion. Relevant matters included the failure to raise cumulative impact at the Inspector’s hearing, the Inspector’s consideration of the issue, later screening opinions expressly addressing cumulative impact, and the amended Schedule 2 thresholds, under which the proposal would not be Schedule 2 development on remittal. The possibility of a direction under regulation 4(9) was fanciful because the power was exceptional and nothing about the development was exceptional.

• Court of Appeal (Civil Division) — Sullivan LJ, with Patten LJ and Roth J agreeing, dismissed the appeal: [2015] EWCA Civ 716.
• High Court of Justice, Queen’s Bench Division, Administrative Court — Lang J dismissed the section 288 application challenging the Inspector’s grant of conditional planning permission: [2013] EWHC 3396 (Admin).