R (on the application of Bateman) v South Cambridgeshire District Council

Development – Planning permission – Environmental impact assessment (EIA) – Interested party seeking planning permission to extend grain storage facility – Respondent local authority deciding EIA not required – Appellant seeking judicial review of respondents’ decision to grant planning permission – Whether respondents giving sufficient reasons for deciding EIA not necessary – Application grantedThe interested party applied for planning permission for the extension of a grain storage and handling facility that was situated close to a village. The proposed development fell within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. The interested party asked for a screening opinion from the respondent local authority. They replied in writing stating that, in their opinion, the development would not be “likely to have significant effects on the environment” and that an environmental impact assessment (EIA) was not required. The letter was accompanied by a statement from a planning officer that provided reasons for the decision. The respondents subsequently granted planning permission.The appellant, who lived in the vicinity of the proposed development, applied for judicial review of that decision. He contended that the screening opinion should be quashed because it was illogical and irrational and did not contain sufficient reasoning to satisfy the requirements of the 1999 Regulations and Council Directive 85/337EEC (the EIA Directive). The appellant argued that the planning officer had failed to demonstrate that she had considered the likely effect of the development on traffic movements, the landscape and noise; alternatively, if she had, she had failed to explain why an EIA was not required. The High Court refused permission to challenge the grant of planning permission: [2010] EWHC 797 (Admin). However, following the grant of permission by the Court of Appeal, Sullivan LJ directed that the court should hear the application.Held: The application was granted (Mummery LJ dissenting). It was for planning authorities to decide on a case-by-case basis whether a development was likely to have a significant effect on the environment. It was important to bear in mind the nature of a screening opinion; it involved neither a detailed assessment of factors relevant to the grant of planning permission nor a full assessment of any identifiable environmental effects. It was concerned only with a decision as to whether an EIA should be undertaken It was important that the court should not impose too high a burden on planning authorities in respect of a procedure that was intended to identify the relatively small number of cases in which the development would have significant effects on the environment.However, it was clear from R (on the application of Mellor) v Secretary of State for Communities and Local Government [2009] 18 EG 84 (CS) that when adopting a screening opinion the planning authority had to provide sufficient information to enable an interested party to see that the possible environmental effects of the development had been properly considered and to understand the reasons for the decision. Such information might be contained in the screening opinion or in separate reasons, if necessary combined with additional material provided on request. In the instant case, although the planning officer’s reasons had to be read in the context of the letter to which they were a response, she provided no clear statement of her reasons for concluding either that there would be no discernible effects on traffic movements, landscape or noise, or that any such potential effects could regarded as significant. Since it was impossible to know or safely infer what her reasons were, the screening opinion did not comply with the requirements laid down in Mellor.This case could be distinguished from R (on the application of Wye Valley Action Association Ltd) vHerefordshire Council [2011] EWCA Civ 20; [2010] PLSCS 27, where the Court of Appeal held that the reasons given for a screening opinion were adequate. In that case, it was reasonably clear from the way in which the opinion was expressed that the council had formed the view that the project was not an EIA development because the land in question was already under cultivation. It was therefore unnecessary to identify or discuss the range of considerations taken into account in reaching that decision. In the instant case, the planning officer had failed either to identify the correct test or to explain why she had concluded that the development was not likely to have significant effects on the environment.The adoption of a screening opinion formed part of a process that led to the grant or refusal of planning permission. If any step in that process was legally flawed, the process as a whole would be flawed and the grant of permission would have to be quashed. Accordingly, there was no alternative but to grant the relief sought.Per Mummery LJ dissenting: The respondents had reached their decision on a consideration of the likely cumulative effects that a major development would have on the environment, traffic, landscape and noise disturbance to nearby residents. The factors identified in the opinion indicated the basis of the decision by reference to the relevant criteria and concluded that the major development would not: (i) have more than local importance; (ii) be proposed for a particularly environmentally sensitive or vulnerable location; and (iii) have unusually complex and potentially hazardous environmental effects. In those circumstances, the screening opinion was not contrary to law for want of reasons or reasoning.Richard Drabble QC and Sasha Blackmore (instructed by Richard Buxton Environmental & Public Law, of Cambridge ) appeared for the appellant; Meyric Lewis (instructed by the legal department of South Cambridgeshire District Council) appeared for the respondents; Robert McCracken QC (instructed by Kester Cunningham John) appeared for the interested party.Eileen O’Grady, barrister