Planning permission – Environmental impact assessment – Screening opinion – Claimant objectors challenging decision to grant planning permission – Whether defendant local authority erring in approving development without environmental impact assessment (EIA) – Claim dismissed
The claimant objectors challenged the decision of the defendant local authority to grant full planning permission to the interested party developer to erect 39 dwellings an associated access and landscaping on land to the south of Herons Wharf, Appley Bridge, Wigan.
In the screening opinion produced by the defendants, the principal planning officer noted that it had been agreed that the proposed development fell under Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 due to its size and nature. He then proceeded to analyse the environmental effects under the criteria laid down in Schedule 3. He conclude that, having regard to the previous site usage, specific consideration had been given to potential site contamination issues and the effects of site preparation and final development on the future occupiers of the site and the surrounding environment and built up areas. However, any identified contamination would not of itself indicate the need for environmental impact assessment (EIA). Therefore, the screening opinion of the defendants was that the proposal did not comprise EIA development.
The claimants submitted that the decision to grant permission was unlawful because of the continuing failure of the defendants to take into account and pay heed to the wealth of environmental information which suggested that the contamination of the site was sufficiently serious and poorly understood to necessitate an environmental impact assessment before the grant of permission. The claimants contended that that was exemplified by errors within the text of the screening opinion and led to an unlawful and perverse conclusion that the proposed development was not EIA development.
Held: The claim was dismissed.
The test to be applied was whether the project was likely to have significant effects on the environment. The criteria to be applied were set out in the 2011 Regulations and judgment was to be exercised by planning authorities focusing on the circumstances of the particular case. The weight to be attached to material considerations was a matter of planning judgment within the exclusive jurisdiction of the decision maker: Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759 and Loader v Secretary of State for Communities and Local Government [2012] EWCA Civ 869; [2012] PLSCS 147 considered.
Whether a proposed development was likely to have significant effects on the environment involved an exercise of judgment or opinion. In determining the likelihood of a development having significant environmental effects, it was open to the decision maker to have regard to proposed remedial measures. The court had to approach a challenge to the decision of issues such as these on Wednesbury principles: Gillespie v First Secretary of State [2003] EWCA Civ 400; [2003] 3 PLR 20 and R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2003] PLSCS 227 considered.
In the present case, the planning officer had been familiar with the site and there was no suggestion that he lacked the appropriate experience or qualifications to produce the screening opinion. It was clear that specific attention had been paid to the potential contamination of the site and the court was satisfied that, in producing the screening opinion, the defendants had applied the correct test and had had proper regard to material information. Adequate reasons had been given for the opinion and the conclusion that the development was not EIA development was not arguably perverse.
Matthew Dale-Harris (instructed by Richard Buxton Environmental & Public Law) appeared for the claimants; Jonathan Easton (instructed by Wigan Borough Council) appeared for the defendants; Sasha White QC (instructed by Gateley LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to download the transcript of Howard and another v Wigan Council