Town and country planning – Environmental impact assessment – Screening direction – Sustainable urban expansion (SUE) — Secretary of state making screening direction that proposed residential development not environmental impact assessment development — Claimant developer applying for permission to challenge direction – Whether decision maker erring in concluding that implementation of the SUE proposal not “reasonably foreseeable” — Application dismissed
The first interested party local authority included within its geographical boundaries 360 hectares of land to the north east of Leicester which it considered suitable for development as being ripe for sustainable urban expansion (SUE) over the next 10 years. Under a core strategy adopted by the first interested party, it was proposed to deliver 13,000 houses between 2012 and 2028. The SUE was the area identified as delivering the largest contribution to the total requirement, being earmarked to provide approximately 4,500 homes and up to 13 hectares of employment land.
The claimant and the second interested party were rival developers who wished to take advantage of the opportunities that those plans would generate and applied, jointly with the third interested party, for planning permission to develop 150 homes on 8.8 hectares within the area of the SUE. The claimant subsequently submitted a hybrid application for outline planning permission for a mixed use residential led development delivering approximately 4,500 residential units and about 13 hectares of employment land.
Before submitting the planning application for its proposed development, the second interested party requested a screening opinion from the first interested party which issued a screening opinion that the development was not an environmental impact assessment (EIA) development. The claimant provided the first interested party with an opinion which suggested that its screening opinion should have considered the environmental impact of the second interested party’s scheme in conjunction with the proposal for the SUE in the draft core strategy. As a result, the second interested party obtained a screening direction from the defendant secretary of state that its proposed development did not constitute EIA development within the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.
The claimant applied for permission to bring judicial review proceedings to challenge that direction. The question for the court was whether it had been open to the decision maker to conclude that the implementation of the SUE proposal was not “reasonably foreseeable”.
Held: The application was dismissed.
(1) A screening direction addressed and determined the question whether a proposed development would be likely to have significant effects on the environment. The criteria to be taken into account were now expressed in annex 3 of EC Directive 2011/92/EC as including “cumulation with other existing or approved projects”. At the time of the screening direction in this case, the words in italics were not yet in force. The criterion was expressed in paragraph 1(b) of Schedule 3 to the 2011 EIA Regulations as being “the cumulation with other developments.” European Guidance described cumulative impact as being “impacts that result from incremental changes caused by other past, present or reasonably foreseeable actions together with the project”. Guidance from the Department for Communities and Local Government referred to the need to have regard to the cumulative effects arising from any existing or approved development. But it also stated that there could be circumstances where two or more applications for development should be considered together.
(2) In the present case, the claimant’s contention that the common law meaning of “reasonably foreseeable” should be transposed to apply in the context of the European Guidance was entirely without justification and unarguable. The threshold of likelihood when the term was used in the context of the European Guidance was significantly higher than when it was applied in the assessment of the foreseeability of risk in the law of tort.
(3) The common law torts of negligence and nuisance were concerned with the risk of injury or damage to persons or property, the requisite standard of care to be displayed towards others who might be affected, and the allocation of responsibility if such injury or damage occurred. The European Guidance was concerned with the likelihood of future development, its likely impact on the environment and its regulation, which was different and gave rise to different legal and policy considerations. When considering whether an alleged tortfeasor owed a duty of care the reasonable foreseeability of harm was a necessary but not sufficient prerequisite: the standard of care was dependent upon the degree of risk and the difficulty of addressing it. No such considerations applied in the context of deciding whether or not the secretary of state should decide that a development was an EIA development for the purposes of making a screening direction. To adopt such a low threshold of future likelihood would be inconsistent with the general thrust of the EU Directive as amended (“cumulation with other existing and/or approved projects”); the references in the European Guidance to the setting of boundaries and cut off points, the absence of any reference to “reasonably foreseeable” in any relevant document having its origins in the UK rather than in Europe; the domestic guidance that only a very small proportion of Schedule 2 development would require an assessment; and the fact that a decision maker was not required to speculate about proposals the future might bring or engage in conjecture about future development on other sites that might or might not act with the development in question to produce cumulative effects: R (on the application of Catt) v Brighton & Hove City Council [2013] EWHC 977 (Admin); [2013] PLSCS 77 and R (on the application of Hockley) v Essex County Council [2013] EWHC 4051 (Admin) considered.
(4) In the circumstances of present case, the claimant had failed to show an arguable case that the defendant had acted unlawfully in excluding consideration of the proposals for the SUE in the draft core strategy and the claimant’s proposal as set out in its application for planning permission. The defendant’s decision was a classic planning judgment. The decision maker had asked himself the correct question and answered it by reference to the correct criteria. There was no material upon which the claimant could properly argue that, although he addressed and applied the correct criteria, he misinterpreted their meaning so as to vitiate his decision.
Peter Village QC and James Potts (instructed by King & Wood Mallesons) appeared for the claimant; Justine Thornton (instructed by the Treasury Solicitor) appeared for the defendant; Anthony Crean QC (instructed by Shakespeares LLP) appeared for the second and third interested parties; The first interested party did not appear and was not represented.
Eileen O’Grady, barrister
