The claimant in R (on the application of Warley) v Wealden District Council [2011] EWHC 2083 (Admin) sought to challenge the grant of planning permission for the erection of nine static columns to provide floodlighting for two courts at a tennis club situated in an AONB. His principal ground of challenge was that the local planning authority (“the LPA”) had erred in law in deciding that the development did not fall within the scope of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”). At the time of the grant of planning permission, the Regulations transposed into domestic law Council Directive 85/337/EEC (“the EIA Directive”).
It was common ground before the judge that the development was to be carried out in a sensitive area – because of the AONB – with the result that if the description fell within Column 1 of Schedule 2, it was not necessary to consider whether the applicable threshold or criterion in the corresponding part of Column 2 was respectively exceeded or met. It was also common ground that there were two candidates, if the development were to fall within Schedule 2. The first was paragraph 10 headed “Infrastructure projects”, which expressly include “urban development projects”. The second was paragraph 13, which covers “changes to and extensions of” a number of specified developments including “tourism and leisure” developments where the development in question is already authorised, executed or on the process of being executed.
The claimant in R (on the application of Warley) v Wealden District Council [2011] EWHC 2083 (Admin) sought to challenge the grant of planning permission for the erection of nine static columns to provide floodlighting for two courts at a tennis club situated in an AONB. His principal ground of challenge was that the local planning authority (“the LPA”) had erred in law in deciding that the development did not fall within the scope of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”). At the time of the grant of planning permission, the Regulations transposed into domestic law Council Directive 85/337/EEC (“the EIA Directive”). It was common ground before the judge that the development was to be carried out in a sensitive area – because of the AONB – with the result that if the description fell within Column 1 of Schedule 2, it was not necessary to consider whether the applicable threshold or criterion in the corresponding part of Column 2 was respectively exceeded or met. It was also common ground that there were two candidates, if the development were to fall within Schedule 2. The first was paragraph 10 headed “Infrastructure projects”, which expressly include “urban development projects”. The second was paragraph 13, which covers “changes to and extensions of” a number of specified developments including “tourism and leisure” developments where the development in question is already authorised, executed or on the process of being executed. Taking the witness statements made by the LPA’s planning officer, the judge concluded that there were at least five indicators that he had adopted an erroneous approach and misdirected himself as a matter of law when he decided that the development did not fall within Schedule 2. This included, for instance, confusing words of description in Schedule 2 with words of limitation. The judge went on to hold that these misdirections of law resulted in the grant of planning permission being vitiated, and he accordingly quashed it. This decision serves as a reminder that there has long been judicial acceptance of the propositions that (a) the Regulations should be construed in a manner that is compatible with the EIA Directive, not least because they are intended to implement it, and (b) a purposive approach should be taken to the interpretation of both. John Martin is a freelance writer.
