Town and country planning – Residential development – Town and Country Planning (Environmental Impact Assessment) (England) Regulations 2011 – Second respondents issuing screening opinion that no environmental impact assessment required for proposed housing development for purposes of 2011 Regulations – Planning permission granted by first respondent’s planning inspector – Whether screening opinion defective for failure to consider cumulative environmental impacts – Whether reasons for screening opinion adequate – Appeal dismissed
The third respondent applied to the second respondent council for planning permission to carry out a development of 73 dwellings on land at Great Dunmow, Essex. One of the second respondents’ planning officers prepared a screening opinion indicating that the development was not likely to have significant effects on the environment and that no environmental impact assessment (EIA) was required for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England) Regulations 2011. In preparing the screening opinion, she referred to the guidance in Circular 02/99 and followed the step-by-step approach which it advocated. She also referred to Schedule 3 to the 2011 Regulations and adopted its structure in dealing with three criteria in turn, namely the characteristics of the development, its location and the characteristics of its potential impact. She dealt in particular with the visual impact of the development. The same planning officer also prepared a detailed report on the planning application, in which she considered relevant local plan policies and referred to another proposed housing development in the area.
The second respondents refused the third respondent’s planning application but conditional planning permission was subsequently granted by the first respondent’s inspector on appeal. In reaching the decision, the inspector confirmed the second respondents’ screening opinion.
The appellant applied to quash the planning permission, pursuant to section 288 of the Town and Country Planning Act 1990, on the grounds that it had not been preceded by a lawful screening opinion. The appellant contended that the screening opinion issued by the second respondents, and confirmed by the inspector, was defective since it did not have regard to the cumulative impact of the proposed development together with other permitted and proposed developments in the vicinity; alternatively, if cumulative impact had been considered, the screening opinion did not give full, clear and precise reasons why the cumulative impact was not likely to give rise to significant effects on the environment. The claim was dismissed in the court below: see [2013] EWHC 3396 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) Reading the screening opinion as a whole and in a common-sense way, it was apparent that cumulative impact had been considered. The mere fact that cumulative impact had not been expressly referred to in the screening opinion did not mean that it had not been taken into account. The analysis of a screening opinion should not be conducted in a vacuum and, when considering whether it was likely that regard had been paid to a particular factor which was not expressly referred to in a screening opinion, it was relevant to consider the context in which the screening opinion was prepared. A screening opinion was one stage in the process of determining a planning application. In the instant case, it was relevant that the planning officer who prepared the screening opinion had also prepared the detailed report on the planning application. It was improbable that, when she carried out the screening opinion, she was unaware of the very recent grant of planning permission for another housing development in the area, to which she had specifically referred in her detailed report, or that she was not familiar with the contents of the local plan allocations for other development.
Moreover, given that the planning officer had specifically referred to Circular 02/99 and carefully followed its guidance, it was unlikely that she would have overlooked its advice that, when judging whether the effects of a development were likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or proposed development. Having also referred to referred to Schedule 3 to the 2011 Regulations and adopted its structure for the purposes of her analysis, it was unlikely that she would then have failed to have regard to those factors to which Schedule 3 told her to have particular regard. Although she had not referred specifically to all of the matters listed in Schedule 3, on a fair reading of the screening opinion as a whole it was clear that, having considered all the matters referred to in the reports accompanying the planning application, and all the factors listed under “Characteristics of Development” in Schedule 3 including cumulative impact, the planning officer had identified and discussed the only factor, namely the visual impact of a significant element of built form within the rural area, which, as a matter of planning judgment, she considered might potentially have justified a conclusion that the development was likely to have significant effects on the environment. Having considered that factor, she had concluded that significant environmental effects were not likely and that an EIA was not required. That was a conclusion which she was entitled to reach.
(2) Although the obligation under regulation 4(7)(a) of the 2011 Regulations to give “clearly and precisely the full reasons” for a screening opinion appeared a demanding one, it was important when considering requirement to bear in mind the function of a screening opinion, which, in terms of the amount of detail required in the reasons, was not to be equated with a decision letter on an appeal. A screening opinion did not involve a full and detailed assessment of an identifiable environmental effects but was instead only a decision, almost inevitably on the basis of less than complete information, of whether an EIA needed to be undertaken at all. The level of detail in a screening opinion would depend on the complexity of the issues to be considered in the particular case; the test was whether the reasons were adequate for the particular application. Although the planning officer’s reasons were brief, they had dealt with the one matter, namely visual impact, which she considered might have been capable of justifying a conclusion that there would be a significant environmental impact, before concluding that they did not. There was nothing in the screening opinion which cried out for further explanation. It told the reader that nothing about the characteristics of the particular development, its location, or the characteristics of its potential impact, justified a conclusion that it was likely to give rise to significant environmental effects. On the particular facts of the case, the reasoning, albeit brief, was not inadequate, bearing in mind the function of the screening opinion: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 considered.
George Mackenzie (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Richard Kimblin (instructed by the Treasury Solicitor) appeared for the first respondent; Satnam Choongh (instructed by the legal department of Redrow Homes Ltd) appeared for the third respondent; the second respondents did not appear and were not represented
Sally Dobson, barrister
