Town and country planning – Planning permission – Environmental impact assessment – Respondent council’s planning officer issuing screening opinion to effect that no EIA required in respect of proposal to erect wind turbines – Planning permission granted for turbines – Application to quash permission – Whether adequate reasons given for screening opinion – Whether respondents complying with duty to respond to request for reasons – Whether appropriate to allow cross-examination of planning officer no witness statement giving further reasons for screening opinion – Appeal allowed
In July 2013, the respondent council granted conditional planning permission to the interested parties for the erection of two 46-metre-high, 50kw micro-generation wind turbines, with a control box and access track, at a farm near Llandrillo, Denbighshire. Before granting planning permission, the respondents issued a screening opinion, prepared by one of their planning officers, in which they concluded that no environmental impact assessment (EIA) was required under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
The appellant contended that an EIA should have been required. Pre-action protocol correspondence sent by his solicitor to the respondents indicated the appellant’s view that the screening opinion was defective and asked the respondents to provide further reasoning. The appellant then brought proceedings to quash the grant of planning permission.
In early October 2013, a month after issue of the claim form and 18 months after the grant of planning permission, the respondents’ planning officer prepared a witness statement expanding on her reasons for the negative screening opinion, although that document was not served on the appellant until later. In the course of the trial, the judge rejected the appellant’s request to cross-examine the planning officer on the witness stand, taking the view that it would not be helpful. He found that there was no inconsistency between the planning officer’s evidence and the contemporaneous documentation and that there was nothing from which the court should conclude that the planning officer had not had the issues mentioned in the witness statement in mind when she had formulated the screening opinion; her witness statement should not be seen as an ex post facto rationalisation of the screening opinion.
Dismissing the appellant’s claim, the judge concluded that, while the original screening opinion was inadequate, the reasons subsequently articulated in the witness statement were sufficient to enable the respondents rationally to conclude that no EIA was required: see [2014] EWHC 1444 (Ch); [2014] PLSCS 166. The appellant appealed.
Held: The appeal was allowed.
(1) The 1999 Regulations (unlike their successor in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011) required reasons to be given only where the local planning authority decided that the proposed development was EIA development and did not themselves require reasons to be given for a decision that no EIA was required. However, an obligation to give reasons for a negative screening opinion existed as a matter of EU law; the reasons had to be sufficient, when combined if necessary by additional information provided to interested parties at their request, to enable them to decide whether to bring proceedings to challenge the decision: R (on the application of Mellor) v Secretary of State for Communities and Local Government Case C-75/08 [2010] Env LR 18; [2009] PLSCS 142 applied.
In giving their reasons, the planning authority had to provide sufficient information to enable anyone interested in the decision to see that proper consideration had been given to the possible environmental effects of the development and to understand the reasons for the decision: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2009] PLSCS 142 applied.
(2) Whether adequate reasons had been given would depend on the facts. In the instant case, the respondents’ initial screening opinion had been inadequate since it merely stated a conclusion and contained no reasoning as to why that conclusion had been reached. On the facts, the appellant had made a valid request for further information in the form of his solicitor’s pre-action protocol correspondence. At the date when the claim form was issued, the respondents were in breach of their legal duty to give adequate reasons for its decision following such a request: Mellor applied. Where a reasons were asked for in a Mellor request, they had to be provided before the proceedings were begun, and in any event within a reasonable time. The substance of the planning officer’s witness statement had not been disclosed to the appellant before the claim was brought.
(3) While there might have been valid objections in those circumstances to admitting the planning officer’s statement as evidence, the appellant had not taken that point before the judge and it was too late to raise it now on appeal. However, the judge should have permitted cross-examination of the planning officer in the circumstances of the case. While cross-examination was rarely permitted in cases of judicial review, the court could in an appropriate case require a witness to attend for cross-examination: O’Reilly v Mackman [1983] 2 AC 237 applied. Whether cross-examination was necessary would depend on the nature of the issue. In the instant case, the question of fact was whether the planning officer’s evidence was an ex post facto justification of the decision to issue the negative screening opinion or was an account of her actual reasoning process at the time. That was a question for the court, not the local planning authority, to determine. The judge had failed to ask himself the critical question of what justice required. It was hard to see how the judge could say that cross-examination would not be helpful on that issue without having heard the cross-examination. The instant case this was one of those admittedly rare cases in which cross-examination was necessary in order for justice both to be done and to be seen to be done. Instead, the judge had conducted an examination of events and come to the conclusion, largely based on inference and extrapolation, that there was no inconsistency between the planning officer’s evidence and what he deduced must have been her reasons for adopting the negative screening opinion. It followed that his order could not stand and the matter should be remitted to the Administrative Court for redetermination.
Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the appellant; Jonathan Easton (instructed by the legal department of Denbighshire County Council) appeared for the first respondent; John Hunter (instructed by Aaron & Partners LLP) appeared for the interested parties
Sally Dobson, barrister
