R (on the application of Evans) v Secretary of State for Communities and Local Government

Planning permission – Development – Impact on environment – Appellant seeking permission to order refusing permission to apply for judicial review of screening direction – Whether respondent secretary of state erring in approach to making direction – Whether direction requiring proportionality – Application dismissed The second interested party put forward a proposal for a development of 170 dwellings and associated roads and infrastructure was proposed over 4.75 hectares of a 12.7 hectare site in Suffolk, adjacent to existing housing. The site was originally within a locally designated special landscape area (SLA), but was allocated for residential development following a local plan inquiry. The site fell within paragraph 10(b) of the first column of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293) (“the 1999 EIA Regulations”). A number of the proposed dwellings would be visible from the grounds of Abbas Hall, a Grade 1 listed building and its owner wrote to the council (the first interested party) asking whether they had considered the need for an environmental statement by means of a screening opinion in accordance with the 1999 EIA Regulations. The first interested party then gave an initial “screening opinion” for EIA purposes which concluded that the proposed development would not have a significant impact on the environment and that an environmental impact assessment was therefore not required. A screening direction made by the respondent secretary of state under regulation 6 of the 1999 EIA Regulations disagreed with the first interested party. It concluded that it was not likely to have significant effects on the environment so that it was not an EIA development and was not subject to the additional procedural requirements of such a development. The High Court refused the appellant’s application for permission to apply for judicial review of that direction. The appellant applied for permission to appeal against that refusal. The appellant argued that the respondent had fallen into error because he failed to take a precautionary and purposive approach when making his screening direction and his application of the Wednesbury principle, was insufficient; a proportionality test was required as suggested in the 2010 report of the Aarhus Convention Compliance Committee. Held: The application was dismissed. (1) The assessment of the significance of impact on the environment was essentially a fact-finding exercise which required the exercise of judgment on the issues of “likelihood” and “significance”. The word “significant” did not lay down a precise legal test but required the exercise of judgment on planning issues and consistency in the exercise of that judgment in different cases, a function for which the courts were ill-equipped. Matters of planning judgment were within the exclusive province of the local planning authority or the secretary of state, particularly where the issue was the visual impact of a development on a site and the relevant officer, unlike the court, had visited the site and used his expertise in assessing: Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2004] 2 P & CR 14 and R (on the application of Bowen-West) v Secretary of State [2012] EWCA Civ 321 applied. (2) The entitlement of the secretary of state to form a view which differed from that of the local planning authority had been recognised in regulation 5(6) of the 1999 EIA Regulations. It was only when the local planning authority’s screening opinion was that the development was EIA development that the developer might request the secretary of state to make a screening direction. There was no support for the view that a full EIA process was required in all cases where the effect would influence the development consent decision and to require the EIA process where there were differing views would largely make the role of the secretary of state redundant: Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case CÐ127/02) [2005] All ER (EC); [2004] ECR I-7405 and R (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869 considered. (3) The decisions in Loader and R (on the application of Mellor) v Secretary of State for Communities and Local Government [2009] PLSCS 142; [2010] Env LR 18 and EU guidance recognised that the test for determining whether a development was EIA development was meant to be one which was intended to be used quickly by people with the requisite qualifications and experience. Disagreement with a planning judgment was not a ground of review. In the present case, the supplementary note to the screening direction showed that the respondent’s official had done far more than rely on the thresholds and the tick-box approach. In all the circumstances, it was not arguable that the respondent had erred in his approach to making the screening direction. (4) A proportionality test was, by its nature, inapplicable to a factual assessment such as that made by the respondent in the present case. There was nothing in the jurisprudence of the European Court of Justice to show that the conventional English law approach to judicial review, including the Wednesbury test, was not appropriate. David Wolfe QC (instructed by Richard Buxton Environmental and Public Law) and Paul Stookes (of Richard Buxton Environmental and Public Law) appeared for the appellant; David Forsdick (instructed by the Treasury Solicitor) appeared for the respondent; The first interested party did not appear and was not represented; Meyric Lewis (instructed by Ashton KCJ Solicitors) appeared for the second interested party. Eileen O’Grady, barrister