Cairns, R (On the Application Of) v Hertfordshire County Council

A screening opinion under the environmental impact assessment regime must address relevant environmental effects, including potentially significant archaeological effects. A failure to do so is a statutory and public law error. Nevertheless, relief may be refused where the court is satisfied that the outcome would have been highly likely to remain the same and the defect caused no substantial prejudice. In planning cases, the assessment and weighing of material considerations remain matters for the decision-maker. The court may intervene only for legal error, irrationality or another recognised public law ground.

The claimant sought judicial review of the defendant’s conditional planning permission for a secondary school in the Green Belt. He challenged two environmental impact assessment screening opinions and the decision that very special circumstances justified inappropriate Green Belt development.

The first screening opinion preceded the planning application. The second was issued under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. The claimant alleged that the second opinion failed to assess archaeological remains and that the planning committee had unlawfully assessed educational need, alternative sites and Green Belt harm.

1. Ground 1 allowed, but relief refused. The second screening opinion failed to address the potential significant environmental effects on archaeological remains. By September 2017, archaeological investigations had identified a potentially important Anglo-Saxon cemetery, an Iron Age enclosure and prehistoric remains. The omission meant that the opinion was incomplete and failed to comply with regulation 5(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. Alternatively, if the issue had been considered but omitted from the reasons, regulation 5(5) was breached.
2. The screening process is limited. It does not require a detailed assessment equivalent to an environmental statement. The authority must nevertheless consider the relevant Schedule 3 criteria and reach a lawful judgment on whether significant environmental effects are likely.
3. The defect did not justify quashing the permission. Applying the court’s discretion and section 31(2A) of the Senior Courts Act 1981, it was highly likely that the outcome would have been the same. The development did not involve construction near the archaeological remains, and conditions would have required their protection, preservation in situ or excavation following expert investigation.
4. Grounds 2 and 3 failed. The defendant was entitled to rely on the educational forecasts, treat primary-school numbers as significant, accept the need for a new six-form-entry school, and conclude that expansion of existing schools would not provide sufficient capacity.
5. The defendant was also entitled to consider the comparative environmental effects, Green Belt impact, cost and deliverability of alternative sites. The selection of the site and the conclusion that very special circumstances clearly outweighed Green Belt and other harm were matters of planning judgment, not unlawful merits review.
6. The claim therefore succeeded on ground 1, but relief was refused and the planning permission was not quashed.

First-instance judicial review. Permission was granted on all grounds. Ground 1 succeeded in relation to the second screening opinion, while grounds 2 and 3 were dismissed. The planning permission was not quashed.