Kenyon, R (On the Application Of) v Wakefield Council & Ors

In screening Schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the question is whether there is a serious possibility of significant environmental effects. The assessment involves planning judgment, and the court intervenes only for public-law error or irrationality.

Authorities should read screening assessments fairly and as a whole. They may consider the development’s scale, location, existing development and known cumulative effects. The assessment is based on information reasonably available at the relevant time. Identified mitigation measures and conditions may be considered, but they cannot be used simply to assume away potentially significant effects requiring environmental assessment.

The claimant, a local resident, challenged the Secretary of State’s screening direction concerning a proposed 150-home development on a former sports complex and contaminated former quarry site.

The Secretary of State concluded that the proposal was Schedule 2 development but was unlikely to have significant environmental effects and therefore was not EIA development. The claimant alleged inadequate consideration of cumulative effects and air quality, and undue reliance on conditions to address contamination. Permission was granted only on those issues; a further ground was abandoned.

1. Claim dismissed. Permission to apply for judicial review on the mitigation ground was refused.
2. The governing question under regulation 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 was whether the development was likely to have significant effects on the environment. “Likely” required more than a bare possibility, although a serious possibility sufficed. “Significant” required planning judgment rather than application of a precise legal test. The court’s role was limited to correcting irrationality or other public-law error.
3. The Council and Secretary of State had considered air quality, traffic and cumulative effects by reference to Schedule 3. Their assessments had to be read fairly, in good faith and as a whole, without an excessively forensic approach. The Secretary of State was entitled to rely on the Council’s detailed screening opinion and to conclude that nearby completed and proposed developments would not create likely significant cumulative effects.
4. The assessment could properly take account of the site’s urban setting, existing development and the information known or reasonably predictable when the screening decision was made. Later or uncertain development proposals did not have to be included. A further screening exercise or assessment at a later planning stage could address subsequent proposals.
5. Under Gillespie v First Secretary of State and R (Champion) v North Norfolk District Council, identified remediation measures and measures secured by condition could be considered at screening stage. However, the precautionary principle meant that potentially significant effects could not simply be treated as insignificant on the assumption that suitable conditions would later be imposed. On the evidence, the Secretary of State had assessed the contamination risks and was entitled to conclude that they were unlikely to produce significant effects beyond those normally present at an existing developed site.

First-instance judicial review in the High Court. The Secretary of State’s screening direction was upheld.