Roskilly, R (On the Application Of) v Cornwall Council And Others

Where a planning authority grants permission after a negative screening opinion, a later conclusive screening direction by the Secretary of State may nevertheless establish that the development is environmental impact assessment development. The authority’s permission is then unlawful under regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 if environmental information has not first been considered. The Regulations do not end the Secretary of State’s screening jurisdiction when permission is granted. An authority that proceeds while a screening-direction request is outstanding takes the risk that the permission will be infected by illegality. In appropriate circumstances, time may be extended for a judicial review claimant who waits for the screening direction, where that decision is essential to the claim and no material prejudice is shown.

Dean Quarry had a valid ROMP permission supported by environmental information. The interested party later applied for ancillary buildings and infrastructure to support reopening the quarry. Cornwall Council adopted a negative screening opinion and granted planning permission on 8 April 2015.

Before permission was issued, the claimant had requested a screening direction from the Secretary of State. On 9 June 2015 the Secretary of State directed under regulation 4(3) that the proposal was environmental impact assessment development. The claimant sought judicial review, arguing that the permission breached regulation 3(4), and alternatively that the Council had acted irrationally by proceeding before the direction was known. A further challenge alleged failure to apply paragraph 116 of the National Planning Policy Framework. The court determined Ground 1 and found it unnecessary to decide Ground 2.

1. Ground 1 succeeded. The Council’s planning permission was quashed because the Secretary of State’s unchallenged screening direction conclusively established that the proposal was environmental impact assessment development, while the Council had not considered the environmental information required by regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.
2. The prohibition in regulation 3(4) was assessed by the court on the material available when the issue was determined. The Regulations did not provide that the Secretary of State’s jurisdiction to make a screening direction ended when planning permission had been granted.
3. The Council was not formally prohibited from granting permission while a screening-direction request was pending. However, by doing so it assumed the risk that a subsequent positive direction would render the permission unlawful. This interpretation was consistent with article 2(1) of the relevant Directive and with the structure of the 2011 Regulations, which made the Secretary of State’s direction conclusive.
4. The power under article 25 of the Town and Country Planning (Development Management Procedure) (England) Order 2010, now replaced by article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, did not justify a different construction. A sensible planning authority would ordinarily await the screening direction where it knew that the request was outstanding.
5. The claimant’s delay was not undue. Waiting for the Secretary of State’s direction was materially relevant because, until it was issued, Ground 1 was speculative. Time was extended to permit the claim to proceed, particularly as no prejudice had been shown.
6. The court did not determine the challenge under paragraph 116 of the National Planning Policy Framework.

Not stated in the judgment.