A further ground of challenge put forward by the claimant in R (on the application of Gerber) v Wiltshire Council (see PP 2015/56) related to the negative screening opinion adopted by the local planning authority (“LPA”).
In adopting a screening opinion, it is settled law that a LPA may have regard to mitigating measures, provided that they are sufficiently specific, that they are available and that there is no real doubt about their effectiveness. However, it was held in R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC Admin 2009 that it was insufficient for a LPA to identify likely effects on the environment, but merely state that those effects would be considered at a later stage on the provision of additional information. The very purpose of a screening opinion was to determine whether an environmental impact assessment should be carried out.
Notwithstanding, in the present case, that the LPA’s planning officer concluded that no environmental impact assessment was required, the screening opinion focused principally on the future provision of statements, assessments and reports that would be expected in support of the planning application. Furthermore, there was no obvious statement “giving clearly and precisely the full reasons” for the planning officer’s conclusion, as required by regulation 4(7) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”).
The judge cited Lebus, in referring to the provision of future statements, assessments and reports. He pointed out that the provision of an environmental statement would also facilitate the full assessment of the relevant issues. The screening opinion did not directly address the question whether or not the proposed development would be likely to have significant effects on the environment such that, instead of environmental information being provided on an ad hoc basis, it should be provided through the legally structured process required by the Regulations. It was therefore flawed as to its substance. He went on to point out that it was also flawed as to its reasoning, since nowhere did it explain why the proposed development did not pass the test.
Rejecting the submission made on behalf of the LPA, the judge said that it was impossible to conclude that the screening opinion would in any event be negative were it to be prepared again. On the basis of the papers before the court, it was impossible to say. And this was not a case where there had been a simple technical procedural failure. There had been a substantive failure to properly apply the Regulations.
John Martin is a planning law consultant
