Preston, R (On the Application Of) v Cumbria County Council

A planning permission granted under section 73 of the Town and Country Planning Act 1990 is a fresh permission for the development of land. Where the permission concerns development in, or capable of affecting, a sensitive area, the environmental effects of its operation must be considered, not merely the physical construction works.

The threshold for Schedule 2 development is low. The existence of controls exercised by another regulator may be relevant, but does not remove the planning authority’s duty to consider operational effects or to adopt a screening opinion where the statutory trigger is met.

Under the Habitats Regulations, mitigation and regulatory controls generally fall to be considered in the appropriate assessment. They do not ordinarily eliminate the need for that assessment unless the risk of a significant effect can be excluded on the basis of objective information.

The claimant, a trustee of the Kent Angling Association, sought judicial review of Cumbria County Council’s decision of 17 October 2018. The decision varied a condition attached to planning permission for a temporary outfall from United Utilities Water’s Kendal Wastewater Treatment Works into the River Kent.

The river was within a Special Area of Conservation and was also a Site of Special Scientific Interest. The claimant alleged that the council had failed to adopt a screening opinion under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and had failed to undertake an appropriate assessment under the Conservation of Habitats and Species Regulations 2017.

The council accepted both grounds. The interested party argued that the permission was not for Schedule 2 development and that regulation by the Environment Agency removed any need for further assessment.

1. Disposition. The claim succeeded. The permission was unlawful and was to be quashed, subject to submissions on the form of order.
2. Nature of the permission. A permission under section 73 of the Town and Country Planning Act 1990 is a fresh permission which may be relied upon in substitution for the earlier permission. Although a planning authority may, when faced with a section 73 application, instead grant retrospective permission under section 73A, it must do so expressly. The permission in this case was granted under section 73 and could not be treated as a section 73A permission.
3. Environmental impact assessment. The relevant development was the installation and operation of the temporary outfall. Regulation 4(3) required operational effects to be included. The assessment therefore had to consider the effects of the treated discharge through the outfall, as well as the physical effects of construction.
4. The permission was Schedule 2 development because it was to be carried out in a sensitive area. Alternatively, it fell within the relevant Schedule 2 change or extension category because the development might have significant adverse effects on the environment. That was a low threshold triggering the need for a screening opinion. No screening opinion had been adopted, which was a fundamental legal flaw.
5. The Environment Agency’s regulatory role was relevant but could not displace the council’s duty under the EIA Regulations. It did not compel the conclusion that significant adverse effects were impossible.
6. Habitats assessment. The council had to consider whether the discharge was likely to have a significant effect on the European site. If that risk could not be excluded on objective information, an appropriate assessment was required. Mitigation, consultation with Natural England and the Environment Agency’s regulatory controls were matters for consideration in the assessment, particularly under regulation 63(6), rather than means of avoiding the assessment.
7. The existing assessment addressed construction only and did not consider the discharge. The council had not engaged with the potential effects of the discharge. Even if it had done so, it could rationally have concluded that no assessment was needed, but that was not the only permissible conclusion. The second ground was therefore also established.

First-instance judicial review proceedings. The judgment does not state any appeal.