Birchall Gardens LLP & Anor, R (on the application of) v BP Mitchell Ltd & Ors

A negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 must give clearly and precisely the full reasons for the conclusion, but the required detail depends on the nature and context of the proposal. The authority need consider only relevant Schedule 3 criteria and may rely on information supplied with the screening request.

Whether effects are likely to be significant, whether further assessment is required by a development-plan site brief, and what information is sufficient are principally matters of planning judgment, reviewable for public law error or irrationality. Procedural unfairness requires proof of material prejudice. Even where screening reasons are inadequate, relief may be refused where it is highly likely that the outcome would have been unchanged.

The claimants sought judicial review of Hertfordshire County Council’s decision to grant planning permission to BP Mitchell Ltd for a permanent inert waste recycling facility in the Green Belt. The proposal retained and expanded temporary waste-recycling operations and included additional stockpiling, buildings, vehicle parking, access and landscaping.

The claim challenged the negative environmental-impact-assessment screening opinion, the interpretation and application of the Hertfordshire Waste Site Allocations Document, alleged procedural unfairness concerning an independent noise report, the assessment of alternative Green Belt sites, and the air-quality baseline. The central issues were whether the Council had lawfully screened the proposal, assessed its planning effects and applied the relevant policies.

The claim for judicial review was dismissed.

1. Screening opinion. The reference to the proposal not meeting the Schedule 2 size requirements was treated as a slip referring to the indicative guidance in the Planning Practice Guidance, not the formal 0.5-hectare threshold. Read with the screening request and the application materials, the opinion sufficiently addressed the characteristics, location and likely effects of the development. It was not irrational to conclude that significant harm was unlikely, given the inert nature of the waste, the absence of particular sensitivities and the experience of the temporary facility.
2. The authority was not required to discuss every Schedule 3 criterion or every receptor expressly. The emerging housing policies identified only potential areas, not housing allocations, and did not require express treatment in the screening reasons. Even if they were material, the omission did not create substantial doubt about the legality of the decision.
3. Development-plan policy. The Waste Site Brief stated that a detailed assessment of impacts on future housing may be required. It did not mandate such an assessment in every case. The nature, scale and location of the facility, the stage of the housing proposals and the information reasonably needed were matters for the Council’s judgment. The independent noise assessment supplied sufficient information, and no irrationality was shown.
4. Fairness and Green Belt matters. The claimants showed no material prejudice from not receiving the full noise report before the committee meeting. The rejection of the alternative Burrowfield site involved a different planning context and was not irrational. The Council also assessed the air-quality effects of the permanent development as a whole.
5. Even if the screening reasons had been inadequate, relief would have been refused under section 31(2A) of the Senior Courts Act 1981. It was highly likely that fuller reasons would have led to the same negative screening opinion and the same planning decision. Each claimant was ordered to pay £10,000 towards the defendant’s costs.