In Walton v The Scottish Ministers [2012] UKSC 44, Lord Carnwath – in dealing with the implications of non-compliance with an EU Directive – stated as follows: “Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source.”
This statement has been seen as sanctioning judicially a less rigid approach to the consequences of breaches of the procedural requirements of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, in terms of the court’s discretion not to quash a planning permission. (For examples of this, see PP 2013/187, PP 2014/38, PP 2014/165 and PP 2015/5.) Now the court in R (on the application of Hughes) v South Lakeland District Council [2014] EWHC 3979 (Admin) has once more followed that less rigid approach.
There, the claimant sought judicial review of the decision by the local planning authority (“LPA”) the grant planning permission and conservation area consent for works of demolition and redevelopment. One of her five grounds of challenge was that the negative screening opinion adopted by the LPA was defective. She contended, in particular, that in relation to the issues of noise, air quality and traffic movement impact the screening opinion had neither engaged with them, nor provided a reasoned conclusion as to whether they were likely to result in significant environmental effects.
The LPA relied upon the fact that comprehensive officers’ reports had been provided to its planning committee, and a upon a witness statement by the officer who had prepared the negative screening opinion. In it, the officer stated that she had taken the reports into account in preparing the negative screening opinion, and that taking their contents into account again, her conclusion would still be the same.
The court held that the screening opinion was legally unsound. The judge also pointed out the need to treat ex post facto accounts with caution, particularly where their purpose was other than merely to clarify or elucidate. (He cited the tests laid down by the Court of Appeal in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302.) However, he concluded that – on the basis of Walton – it was appropriate to exercise his discretion not to quash the planning permission. It was nevertheless clear both from the officers’ reports and the witness statement that any further screening opinion would have been adopted in negative form.
John Martin
