R (on the application of Catt) v Brighton and Hove City Council

Temporary planning permission – Football club – Renewal of permission and extension of facilities – Whether council erring in conclusion that no environmental impact assessment required – Whether entitled to take proposed mitigation measures into account when adopting screening opinion – Whether date of screening opinion relevant date for considering question of delay – Appeal dismissed The appellant lived in Brighton near a stadium that had, since 1998, been used by a football club under a series of temporary planning permissions. The permissions were subject to comprehensive conditions concerning the frequency of matches, the playing of music and the use of floodlights. The club’s use of the stadium was intended only as a temporary measure until it could find an alternative home. In February 2005, the club applied to the respondent council for a further planning permission for the continued use of the stadium until 2008, and the provision of additional seating, new changingand stewards’ rooms, new turnstiles and the relocation of a hospitality unit.The respondents adopted a screening opinion, for the purposes of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, to the effect that no environmental impact assessment (EIA) was required for the proposed development, since it was unlikely to have significant environmental effects. The respondents took into account that: (i) the disturbance to residents would be limited in frequency and duration; (ii) there were no significant polluting or natural resource implications; and (iii) the club had put in place stewarding measures and sustainable transport arrangements to reduce any effect upon the surrounding area. They granted the planning permission, subject to the club entering into an agreement, under section 106 of the Town and Country Planning Act 1990, to secure traffic mitigation and other safeguards. In October 2005, the appellant brought judicial review proceedings to quash the grant of permission on the ground that the screening opinion was flawed and an EIA had been necessary. Dismissing the claim, the judge held that the respondents had been entitled to conclude that the development did not require an EIA. He further expressed the view that the claim would fail in any event on the grounds of undue delay, on the basis that the relevant date was that of the screening opinion. On appeal, the appellant contended that, inter alia, the screening opinion had unlawfully relied upon prospective mitigation measures considering the environmental effects of the development.Held: The appeal was dismissed. (1) In deciding whether an EIA was necessary, examination of the actual characteristics of the specific project was required. That approach did not lend itself to rules of thumb as to whether conditions or remedial measures could be taken into account or as to the extent to which their likely effect could be predicted. In some cases, the uncertainties would be such that favourable implementation could not be assumed when the screening opinion was formed. By contrast, however, there would be cases where the likely effectiveness of conditions or proposed remedial measures could be predicted with confidence, or where the nature, size and location of the development was such that the likely effectiveness of these measures were not crucial to forming the opinion. In the instant case, the respondents had not been obliged to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative of remedial measures. Although the consequences of providing additional seating could not be predicted with certainty, the respondents had extensive knowledge and experience, which was supported by surveys, of the effects of existing matches upon the environment. On the basis of that, and the studies into future effect, they had been entitled to assess the likely impact of the additional capacity proposed in the context of the continuing ameliorative measures and to form the screening opinion they had: Bellway Urban Renewal Southern v Gillespie [2003] EWCA Civ 400; [2003] 14 EG 123 (CS) distinguished.(2) Where a grant of planning permission followed the adoption of a screening opinion, it was the grant of permission that affected the interests of the citizens concerned, and it was the date of that grant that was relevant in deciding whether there had been undue delay in bringing a judicial review claim for the purposes of section 31(6) of the Supreme Court Act 1981. Although the screening opinion had a certain formality and status in the statutory planning scheme, the right to challenge a subsequent planning permission relating to the same proposed development was not defeated by the passage of time between the screening opinion and the planning permission: R (on the application of Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23; [2002] 1 WLR 1593 and Younger Homes (Northern) Ltd v First Secretary of State[2004] EWCA Civ 1060; [2005] 3 PLR 21 applied.William Upton (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Mary Macpherson (instructed by the legal department of Brighton and Hove City Council) appeared for the respondents; Jonathan Clay (instructed by DMH Stallard, of Brighton) appeared for the interested party.Sally Dobson, barrister