Jedwell, R (on the application of) v Denbighshire County Council & Anor

A local planning authority must provide reasons for a negative environmental impact assessment screening opinion within a reasonable time after a valid request. The reasons must reflect the decision-maker’s contemporaneous reasoning, not an ex post facto justification. A later provision of genuine contemporaneous reasons may make quashing disproportionate where interested persons have not lost any substantive environmental-law right and have suffered no material prejudice. If no contemporaneous reasons can be established, the planning permission should ordinarily be quashed unless the authority proves that the outcome would inevitably have been the same. Cross-examination of a decision-maker in a public-law challenge remains exceptional and fact-specific.

The claim concerned planning permission for two 46-metre wind turbines in Denbighshire. The Council had issued a negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, stating only that the development would not give rise to significant effects.

Foskett J dismissed the initial judicial review after accepting a later witness statement as providing the officer’s contemporaneous reasons. The Court of Appeal held that the screening opinion was inadequately reasoned and that the Council had breached the duty to give reasons following a valid request, but remitted the question of relief for cross-examination of the officer. The central issue was whether the later statement recorded contemporaneous reasoning or amounted to ex post facto justification.

1. Disposition. The judicial review was allowed to the limited extent that the Council had breached its duty to provide reasons for the negative screening opinion within a reasonable time of the claimant’s request. Substantive relief was restricted to a declaration; the planning permission was not quashed.
2. Contemporaneous reasoning. The officer’s evidence, tested in cross-examination, was accepted as credible and truthful. Her statement accurately recorded the reasoning held at the time of the screening decision, including consideration of environmental receptors, visual and landscape effects, and cumulative effects with other windfarm developments. The statement was not an ex post facto rationalisation.
3. Relief. The court retained a discretion to withhold relief for a breach of the environmental assessment procedure. The relevant considerations included whether the claimant had been deprived of a right or opportunity conferred by European law, whether there was substantial or material prejudice, and whether the challenged decision would have been the same despite the breach.
4. Reasons are not themselves part of the substantive screening decision. Where a proper negative evaluation was made but reasons were not supplied on request, the breach may be remedied without quashing if the reasons are later established as genuinely contemporaneous and no substantive environmental-law right or planning-process opportunity was lost. The authority may, however, be penalised in costs.
5. If no contemporaneous reasons are forthcoming, the planning permission should ordinarily be quashed unless the authority proves that the decision would inevitably have been the same, either originally or on remittal. The burden rests on the authority.
6. Cross-examination of a public decision-maker may be necessary for the just disposal of a claim, but such cases remain exceedingly rare and fact-specific. Applications to cross-examine should remain exceptional.

1. High Court (Administrative Court): Foskett J dismissed the initial judicial review: [2014] EWHC 1633 (Admin).
2. Court of Appeal: dismissed the appeal on the other grounds, but allowed the appeal concerning the screening opinion and reasons, and remitted the issue of relief: [2015] EWCA Civ 1232.
3. High Court (Administrative Court): following remittal, the claim was allowed to the limited extent of a declaration that the Council breached its duty to give reasons. The planning permission was upheld.