R (on the application of Catt) v Brighton and Hove City Council and another

Football stadium — Development — Temporary planning permission — Council granting permission without benefit of environmental impact assessment — Screening opinion concluding that proposed development having no significant effects upon environment — Claimant seeking judicial review of grant of planning permission — Whether screening opinion flawed — Application dismissed The claimant lived near a stadium that had been the home of a football club (the interested party) since 1998. Prior to that, it had been used for athletics. The interested party had been trying to find a permanent site in an out-of-town location because the stadium was unsuitable for football; it was in a residential area, which gave rise to transport problems. The interested party failed to find a new site, so the use of the stadium continued by way of a number of temporary planning permissions granted by the defendant local authority. Having taken legal advice, the defendants decided that those permissions did not receive an environmental impact assessment (EIA). In October 2004, a further permission was granted for the continued use of the stadium with 1,966 extra seats in a new permanent stand, the extension of existing stands, new changing rooms and the relocation of a hospitality unit. The defendants assumed, wrongly, that no EIA was required having regard to the previous advice. However, following a legal challenge, they accepted that the proposed development came within the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 and that it was necessary to consider whether the development was likely to have significant environmental effects. In March 2005, it was decided that no EIA was required since a screening opinion, adopted by the defendants, had concluded that the proposed development would not result in any significant effects upon the environment. The claimant applied for judicial review of that decision, seeking to quash the grant of permission on the basis that the screening opinion was flawed and an EIA had been necessary. Held: The application was dismissed. The court was not persuaded that this was not an EIA development. A local authority that adopted a screening opinion advising that a development was not an EIA development could change their view before granting planning permission only in exceptional circumstances. Unless an objector could produce material that had not been taken into account or could demonstrate an obvious shortcoming in the opinion, he or she could not reasonably expect his or her representations to succeed: R (on the application of Fernback) v Harrow London Borough Council [2001] EWHC 278 (Admin); [2001] 18 EG 173 (CS) considered. The development in question came within Schedule 2 to the 1999 Regulations since it was a change to, or extension of, an existing urban development project. However, because a temporary permission had expired, there was no permitted use as a football stadium. The application was for an extension of the existing permitted use for a sports stadium of limited size and with limited facilities, and whatever limitations were properly put on a consideration of its effect had to extend to the use of the stadium as a whole. Whether a proposal would have a significant effect was a matter of judgment and the court could interfere only if it could be persuaded that the judgment was irrational or had failed to have regard to material considerations. A fair reading of the opinion in this case showed that the author had considered the overall effect of the proposal and was entitled to have regard to mitigation measures in deciding whether this was an EIA development. William Upton (instructed by Richard Buxton, of Cambridge) appeared for the claimant; Mary Macpherson (instructed by the legal department of Brighton and Hove City Council) appeared for the defendants; Jonathan Clay (instructed by DMH Stallard, of Brighton) appeared for the interested party. Eileen O’Grady, barrister