The Court of Appeal in Jedwell v Denbighshire County Council and others [2015] EWCA Civ 1232; [2015] PLSCS 344 was concerned with environmental impact assessments (“EIAs”) and screening opinions.
The council’s planning officer had issued a negative screening opinion, stating that no EIA was required. A resident argued that an EIA should have been obtained and that the screening opinion was inadequately reasoned, making the grant of planning permission in February 2013, for wind turbines, unlawful.
The 1999 EIA Regulations, which remained in force in Wales, obliged the local authority to give reasons only where the screening opinion concluded that an EIA was required. They did not require reasons to be given for a negative screening opinion. However, EU law did, either in the decision itself or in a subsequent communication following a request from an interested party. The reasons had to demonstrate that the author had understood and considered the issues, and that proper consideration had been given to the possible environmental effects of the development. They also had to be sufficient to enable the interested party to understand why the decision had been made and to decide whether to challenge it. The instant screening opinion stated its conclusion but contained no reasoning at all. It did not indicate why the planning officer thought that no EIA was needed, and it did not demonstrate that she had applied her mind to the relevant questions. The council had not provided any proper reasons in response to the letter.
In this case the contemporaneous notes for the screening opinion were argued to be inadequate and the Administrative Court judge agreed. However, the judge stated that the planning officer had subsequently properly explained her reasoning in a later witness statement and dismissed the appeal, thereby upholding the planning consent. The Court of Appeal decided that the refusal of the judge to allow cross-examination of the planning officer during the judicial review hearing about her witness statement (written long after the screening opinion was made) was a procedural irregularity. Therefore the Court of Appeal allowed the appeal and remitted the case to the Administrative Court to consider again.
The Court of Appeal went further and commented that the planning officer’s witness statement had not cured the earlier deficiency – ie the failure to provide adequate reasons. This was because “the contents of the planning officer’s witness statement had not been disclosed before the resident issued his claim form”. It noted then that “if a reasonable time had elapsed but proceedings had not been commenced, the local authority might still cure any deficiency by supplying further reasons before the commencement of proceedings”.
While the Court of Appeal concluded there was a procedural irregularity (the planning officer in charge of the case was not cross examined about her evidence), the fundamental issue in this case was the scope of the obligation on local planning authorities to give reasons when adopting EIA screening opinions, whether they are positive (an EIA is required) or negative. This highlights the importance for planning officers to provide adequate reasoning when making a determination that an EIA is not required.
Martha Grekos is a partner and London head of planning and infrastructure at Irwin Mitchell
