Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
- The claim therefore succeeded on ground 1, but relief was refused and the planning permission was not quashed.
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Appellate history
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.
Key cases cited
21 authorities cited.
- Suffolk Coastal District Council v Hopkins Homes Ltd and another [2017] UKSC 37
- R v North Norfolk District Council and another [2015] UKSC 52
- Walton v The Scottish Ministers (Scotland) [2012] UKSC 44
- Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13
- Regina v London Borough of Hammersmith and Fulham, Ex p Burkett [2002] UKHL 23
- City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447
- Mackman v The Secretary of State for Communities And Local Government Uttlesford District Council Redrow Homes (Eastern) Ltd [2015] EWCA Civ 716
- Evans, R (on the application of) v Secretary of State for Communities and Local Government & Ors [2013] EWCA Civ 114
- Loader, R (on the application of) v Secretary of State for Communities and Local Goverment & Ors [2012] EWCA Civ 869
- Bowen-West v Secretary of State for Communities and Local Government & Ors [2012] EWCA Civ 321
- Bateman, R (on the application of) v South Cambridgeshire District Council & Anor [2011] EWCA Civ 157
- Catt, R (on the application of) v Brighton & Hove City Council & Anor [2007] EWCA Civ 298
- Jones, R (on the application of) v Mansfield District Council & Anor [2003] EWCA Civ 1408
- Hockley v Essex County Council [2013] EWHC 4051 (Admin)
- British Telecommunications Plc v Gloucester City Council [2001] EWHC 1001 (Admin)
- R. (Birchall Gardens LLP) v Hertfordshire CC [2017] Env. L.R. 17
- Gemeinde Altrip v Land Rheinland-Pfalz Case C-72/12
- R (Mellor) v Secretary of State for Communities and Local Government Case C-75/08
- Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2005] 2 C.M.L.R. 31
- R (Lebus) v South Cambridgeshire District Council [2003] Env LR 366
- Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26
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