Kenyon v The Secretary of State for Housing Communities & Local Government

Whether Schedule 2 development is likely to have significant environmental effects is a fact-sensitive matter of planning judgment. The decision-maker must apply the relevant selection criteria and treat “likely” as requiring a real risk. A screening decision may be set aside only on Wednesbury grounds.

Proximity to an air quality management area does not automatically require an environmental impact assessment. The precautionary principle operates where the primary decision-maker is materially uncertain. It does not apply merely because another person disagrees, unless the absence of doubt is itself irrational. Screening reasons must be read fairly and as a whole, recognising the preliminary and comparatively limited nature of the assessment.

The Secretary of State directed under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 that a proposed development of 150 dwellings on a 6.01-hectare site was not EIA development. The site was near the Hemsworth Air Quality Management Area. The developer’s proposal, other completed and planned housing, additional traffic and potential cumulative effects had been addressed in the screening material.

Lang J dismissed the ensuing judicial review claim in [2018] EWHC 3485 (Admin). The appellant contended that the screening direction lacked an adequate evidential basis, failed to assess cumulative effects and the precautionary principle, mischaracterised the site, and wrongly treated its urban context as reducing the applicable standard. The central question was whether the judge had erred in upholding the negative screening direction.

1. Appeal dismissed. The Secretary of State had a sufficient evidential basis for deciding that the proposed development was not likely to have significant environmental effects. The development was comparatively modest, only just fell within Schedule 2, and its nature, scale, location, traffic effects and proximity to the air quality management area had all been considered. The conclusion was a lawful exercise of planning judgment and was not irrational.
2. Proximity to an air quality management area is not a decisive or automatic reason for requiring an environmental impact assessment. Significance depends on the circumstances, including the development’s nature, size, scale, location and proximity to the affected area. Those matters operate on a spectrum. Specific evidence remains necessary to demonstrate that the environmental effect is likely to be significant.
3. The screening opinion and direction adequately considered cumulative effects. They addressed completed developments, pending proposals and sites allocated for housing in the local development framework. The conclusion that the combined effects were unlikely to be significant was supported by the material and was open to the decision-makers.
4. The precautionary principle applies where the primary decision-maker is materially uncertain whether an environmental impact assessment is required. It does not arise merely because another person takes a different view. Where the decision-maker has no doubt, the principle can affect the result only in the rare case where that absence of doubt is irrational on Wednesbury principles.
5. A screening decision is a preliminary, broad assessment rather than a detailed environmental evaluation. Its reasons must be read fairly, in good faith and as a whole. The existing urban environment was a relevant contextual consideration; the Secretary of State had not substituted a lower significance threshold for urban development.
6. Judicial review ordinarily proceeds on the material available to the original decision-maker. Later documents may exceptionally bear upon remedy after unlawfulness has been established, but should not be used to conduct a rolling review of the decision’s merits. On appeal, it was incumbent on the appellant to identify an error of law in the judge’s evaluation, rather than reargue the documentary evidence.

David Richards and Lewison LJJ agreed with Coulson LJ.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The negative EIA screening direction was lawful and the High Court’s decision was upheld: [2020] EWCA Civ 302.
2. High Court, Planning Court: Lang J refused the judicial review challenge to the Secretary of State’s screening direction: [2018] EWHC 3485 (Admin).