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

Temporary planning permission – Football club – Renewal of permission and extension of facilities – Whether defendant council erring in concluding that no environmental impact assessment required – Whether defendants entitled to take proposed mitigation measures into account when adopting screening opinion – Whether date of screening opinion relevant date for considering question of delay – Whether appropriate question for referring to European Court of Justice – Application dismissedThe claimant lived near to a stadium that, since 1998, had been used by a football club under a series of temporary planning permissions. The club’s use of the stadium was intended only as a short-term measure until it could find an alternative home. In February 2005, the club applied to the defendant council for a further planning permission for the continued use of the stadium until 2008. It also applied for the provision of additional seating, new changing and stewards’ rooms, new turnstiles and the relocation of a hospitality unit.The defendants gave a screening opinion, for the purposes of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, stating that no environmental impact assessment (EIA) was required for the proposed development, because it was unlikely to have significant environmental effects. They granted the planning permission, subject to the club agreeing to certain specified safeguards.The claimant challenged that decision. The Court of Appeal found that the defendants had been entitled to find that the proposed development would not detrimentally affect the environment and that an EIA was not required: see [2007] EWCA Civ 298; [2007] PLSCS 69.The defendants granted further temporary conditional planning permissions to the club for its continued use of the stadium. The permission did not increase the seating capacity but it allowed for the construction of a small staff building. The claimant applied for permission to seek judicial review of that decision on the basis that the defendants had failed to carry out an EIA and the conditions, controls or measures that they had put in place to avoid adverse effects were inadequate. Moreover, they had failed to take into account the cumulative effect of the development.The claimant asked the court to make a reference to the European Court of Justice (ECJ) to determine preliminary issues relating to the extent to which a local authority should consider the environmental effects of a proposed development and the mitigation measures that might be taken into account for purposes of Council Directive 85/337 on the EIA of public and private projects.The claimant had also made a complaint against the UK to the European Commission that was accepted and registered. Held: The application was dismissed.It was appropriate to make a reference to the ECJ only if such a referral were necessary to enable the court to give a judgment in the proceedings before it, which was not the issue in the instant case. The question at the heart of the defendants’ screening opinion was whether the club’s continued use of the stadium for a further period of three years would have significant effects on the environment by virtue of its nature, site or location. Those effects had not changed since the decision of the Court of Appeal, and the court was bound by that decision.Neither the High Court, the Court of Appeal nor the House of Lords had found it necessary to refer the case to the ECJ, nor had the parties involved. Moreover, no party or court concerned with any of the earlier cases in which the issue was raised had considered it necessary to make a reference to the ECJ: R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin); [2003] 2 P&CR 5; Gillespie v First Secretary of State [2003] EWCA Civ 400; [2003] 3 PLR 20 and R (on the application of Dicken) v Aylesbury Vale District Council [2007] EWCA Civ 851, [2008] JPL 1575 considered. Further, the decisions in Lebus and Gillespie could be distinguished since they concerned prospective control measures, rather than controls that were tried and tested, as in the instant case.The Commission’s decision to open a complaint against the UK, and its subsequent letter of reply carried little weight when determining whether it was appropriate to make a reference to the ECJ. The Commission’s letter was wholly supportive of the defendants’ position and did not purport to decide whether the question of EU law before the Commission was acte clair. It was also apparent from the 2006 Draft Circular on Environmental Impact Assessment that the extent to which proposed remediation measures might be taken into account for screening purposes depended on the facts of the case.Thus, by parity of reasoning to the issue of referral, the claimant’s application for permission to apply for judicial review would be dismissed.William Upton (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the claimant; Harriet Townsend (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