Town and country planning – Screening opinion – Environmental impact assessment – Defendant council’s planning officer issuing screening opinion to effect that no EIA required in respect of proposal to erect wind turbines – Defendants granting planning permission for turbines – Claimant applying to quash permission – Administrative Court dismissing application – Court of Appeal allowing appeal and remitting case – Whether planning officer’s witness statement providing contemporaneous reasons, or ex post facto justification, for the negative screening opinion – Application granted with declaratory relief
In July 2013, the defendant 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, on land at Syrior, Llandrillo, Denbighshire. Before granting planning permission, the defendants 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 claimant, a local resident opposed to the development, applied for an order quashing the grant of permission. He contended that, since the reasoning in the screening opinion was inadequate, the grant of planning permission was invalid and should be quashed. The judge rejected the claimant’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 in the witness statement in mind when she formulated the screening opinion; her witness statement should not be seen as an ex post facto rationalisation of the screening opinion. Whilst the original screening opinion was inadequate, the reasons subsequently articulated in the witness statement were sufficient to enable the defendants rationally to conclude that no EIA was required: see [2014] EWHC 1444 (Ch); [2014] PLSCS 166.
An appeal against that decision was allowed and the matter remitted to the Administrative Court to determine, with the benefit of cross-examination, whether the planning officer’s witness statement provided her contemporaneous reasons, or her ex post facto justification, for the negative screening opinion: see [2015] EWCA Civ 1232; [2015] PLSCS 344. The question was remitted in the context of the exercise of the court’s discretion in relation to relief on the defendants’ established breach of duty to give reasons within a reasonable time of a Mellor request: see 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.
Held: The application was granted with restricted substantive relief.
(1) Whilst every case was necessarily fact-specific, a local planning authority was required to give reasons for a negative screening opinion within a reasonable time of a request (the Mellor duty). Those had to be the reasons in its mind at the time of the decision, and not an ex post facto justification. If it failed to give reasons within a reasonable time of request, it would be in breach of duty. Given the possibility of a request coming in months or years after the EIA screening decision was taken, authorities should generally maintain a note of the decision-maker’s reasons for any negative screening decision, so that those reasons could be sent out if and when requested. Once proceedings were issued, whilst it would be too late for an authority to avoid a breach by providing reasons, if the authority thereafter provided reasons, and the court was persuaded that they were the reasons in the council’s mind at the time of the decision, the court was likely to be slow to quash the planning permission; it was unlikely that interested parties would have been denied any right or opportunity to participate in the planning process given by European law, or that anyone would have been materially prejudiced by the delay in providing reasons. However, in those circumstances, the court might penalise the authority in costs: R (on the application of Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin); [2013] PLSCS 302 and R (on the application of Champion) v North Norfolk District Council [2015] UKSC 52; [2015] EGLR 59 applied. R (on the application of Richardson) v North Yorkshire County Council [2003] EWHC 764 (Admin); [2003] PLSCS 292 and R (on the application of Berky) v Newport City Council [2012] EWCA Civ 378; [2012] PLSCS 79 considered.
If no contemporaneous reasons were forthcoming, including where the court rejected the submission that reasons put forward were contemporaneous, then in accordance with usual public law principles, the planning permission should be quashed unless the authority could show that the decision would inevitably have been the same if the breach had not occurred; or, if remitted, the decision would now be the same. The burden was upon the authority, and whether it had discharged it would be dependent upon the evidence. The court would be wary of the possibility that, in producing such evidence, the authority might be under some pressure, conscious or unconscious, to maintain the planning permission decision.
(2) In the present case, the judge’s finding of fact that the planning officer’s statement accurately set out the reasoning which she had in mind at the time she determined the negative screening opinion, was sufficient to dispose of the claim. Although the defendants were in breach of the Mellor duty to give reasons for a negative screening opinion within a reasonable time of a request, given that adequate reasons had now been given, this was not a case in which it would be appropriate to give substantive relief. As a result of the breach, the claimant had not been deprived of any right or opportunity granted to him as a member of the public by European law; and he had suffered no prejudice in the planning process. Although the planning officer’s statement had not been served until after the claim had been issued and served, any prejudice to the claimant as a result could be dealt with by appropriate consequential orders in the claim. The Court of Appeal had already ordered the defendants to pay the claimant’s costs of both the claim and the appeal up to the date of the Court of Appeal judgment.
(3) The application for judicial review would be allowed; but restricting substantive relief to a declaration that the defendants were in breach of their Mellor duty to give reasons for their negative screening decision within a reasonable time of the claimant’s request.
Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the claimant; John Hunter (instructed by Denbighshire County Council Legal Services) appeared for the first respondent; John Hunter (instructed by Aaron & Partners LLP) appeared for the interested parties.
Eileen O’Grady, barrister
Click here to read the transcript of R (on the application of Jedwell) v Denbighshire County Council
