Swire v Ashford Borough Council

A negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) Regulations SI No 2017/571 is not conclusive when planning permission is granted. The authority must be satisfied at that time that the development is not likely to have significant environmental effects. A lawful negative opinion remains an important benchmark, however. A later review is required only where subsequent changes or newly appreciated facts are rationally capable of leading to a different conclusion. The assessment concerns the environmental significance and likelihood of effects, and LVIA terminology cannot simply be transposed into the EIA test. Positive effects fall within the language of the Regulations, but they must themselves be likely to be significant. A difference of opinion from a consultee does not, by itself, require reconsideration.

The claimant sought judicial review of Ashford Borough Council’s grant of planning permission to the interested party for a winery and visitor centre in the Kent Downs Area of Outstanding Natural Beauty. The Council had issued a negative EIA screening opinion. The claimant alleged that the opinion was not reconsidered in the light of the application material and consultation responses, that the proposal was assessed under the wrong Schedule 2 category, and that positive environmental effects were wrongly disregarded.

The central issues were whether the Council had lawfully discharged its obligation under Regulation 3 at the date of permission, whether later landscape and visual information created a realistic prospect of a different screening conclusion, and whether the proposal fell within the relevant Schedule 2 descriptions.

1. Applicable legal framework. Regulation 3 prohibits permission for EIA development unless an EIA has been carried out. A negative screening opinion does not determine that development is not EIA development. The authority must therefore consider, and rationally conclude at the date of permission, that the development is not likely to have significant environmental effects.
2. Effect of later information. There is no duty to keep a negative screening opinion under constant surveillance. Where the opinion was lawful when made, later changes or newly appreciated facts require further consideration only if they are rationally capable of leading to a different conclusion. The authority may satisfy Regulation 3 by considering the later material and concluding that the development remains unlikely to have significant effects. If it does not consider that question, permission remains lawful where no reasonable planning officer could have thought that the later material might make the development EIA development.
3. The Planning Officer had considered the LVIA, its addendum and the AONB Unit’s responses. The Officer’s Report addressed the significance of the landscape and visual effects and rationally concluded that the later material did not make the development likely to have significant environmental effects. The difference between the LVIA’s description of effects as “moderate-slight” and the Report’s reference to “slight” did not materially mislead the Committee when the Report was read as a whole.
4. Schedule 2 categories. The winery was not a development for “packing and canning” or “brewing and malting”. A purposive and broad interpretation of the Regulations did not permit those precise descriptions to be extended to wine production, mobile bottling or packing bottles into cases. In any event, consideration of those categories would not have altered the screening judgment.
5. Positive environmental effects must be included within the EIA assessment, but the proposed biodiversity gains were not rationally likely to constitute significant environmental effects. Any errors concerning the Schedule 2 categories or positive effects would not have substantially altered the outcome, engaging section 31(2A)(a) of the Senior Courts Act 1981.
6. The judicial review claim was dismissed.