Gregory v Welsh Ministers

Planning appeal  – Wind farm – Environmental impact assessment – Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 – Planning inspector granting planning permission for wind farm on appeal – Inspector deciding no EIA required – Whether inspector erring in deciding that question himself rather than referring it to defendant ministers for screening direction under regulation 9(2) – Whether lacking jurisdiction to grant planning permission in absence of screening direction – Claim allowedThe second interested party proposed to construct a small wind farm, comprising two wind turbines and associated works, on his land on Anglesey. The claimant was opposed to that development. It was common ground that the development would fall within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, implementing Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, such that a screening opinion was needed as to whether the development required an environmental impact assessment (EIA). Pursuant to para 5 of the 1999 Regulations, the first interested party, as local planning authority, issued a screening opinion to the effect that the development was unlikely to have significant effects on the environment and that an EIA was not required. The second interested party then applied for planning permission for the development but the first interested party failed to determine that application within the prescribed period. The second interested party appealed to the defendants pursuant to section 78 of the Town and Country Planning Act 1990; that appeal was conducted before a planning inspector. The claimant was an objector at the appeal and contended that an EIA should be carried out. The inspector decided that no EIA was required, allowed the appeal and granted planning permission.The claimant brought proceedings to challenge that decision under section 288 of the Town and Country Planning Act 1990. She contended that, by regulation 9(2) of the 1999 Regulations, the inspector had been required to refer the question of whether an EIA was required to the defendants and had lacked any jurisdiction to grant planning permission without first obtaining a screening direction from the defendants on that issue; she submitted that his decision should be quashed accordingly.Held: The claim was allowed.By reason of regulation 9(2), the inspector had had no jurisdiction to determine the appeal and his decision should be quashed accordingly. The inspector should not have purported to decide whether the application was an EIA application but should instead have referred that question to the defendants for determination. He had no power to grant planning permission until that question was lawfully determined. That conclusion followed from the clear wording of regulation 9(2). A question had arisen on the appeal as to whether the application was an EIA application. The inspector therefore had to ask whether the application might be an EIA application, and, if he decided that it might, then he had to refer the question of whether it was in fact such an application to the defendants; he was not permitted to decide that question for himself. He was prohibited from determining the appeal, except by refusing planning permission, before he had received a screening direction from the defendants.Either the inspector had not asked the proper question as to whether the development might be EIA development or, if he had asked it, he had then proceeded to address an improper question, namely whether an EIA was required. The only sensible answer to the question of whether the second interested party’s application might be an EIA application was that it might be such an application. By proceeding to ask and answer the question of whether an EIA was in fact required, the inspector had impermissibly usurped the function of the defendants, which, by reason of regulation 9(2), was the competent authority designated as responsible for performing the duties arising from the directive.The inspector’s decision should be quashed. It was not appropriate to refused a quashing order as a matter of discretion, on the ground that an order would serve no practical purpose, notwithstanding that the first interested party, the inspector and the defendants’ planning division had all formed the view that an EIA was not required. Where administrative action had been taken in excess of power, the normal relief was a quashing order. The first interested party and the inspector had both failed to give any proper reasons for the opinion that they formed and it was unclear whether the defendants’ planning division had addressed the matter with any rigour. More importantly, the effect of the inspector’s decision was to bypass the competent authority designated by the domestic legislation pursuant to article 1(3) of the directive and thereby to circumvent the scrutiny with ministerial responsibility required by the 1999 Regulations.Anthony Crean QC (instructed by Irwin Mitchell LLP, of Sheffield) appeared for the claimant; Graham Walters (instructed by the Treasury Solicitor) appeared for the defendant; the second interested party, Owen Rowlands, appeared in person; the first interested party, Isle of Anglesey County Council, did not appear and were not represented.Sally Dobson, barrister