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

Development – Planning permission – Environmental impact assessment – Developer applying for permission to redevelop area in which appellant lived – Secretary of state making negative screening direction – Appellant applying for judicial review of direction – Whether judge erring in law in concluding that secretary of state misdirecting himself on meaning of “significant effects on the environment” – Appeal dismissed The second interested party developer applied for planning permission to redevelop a former bowls club to form 41 sheltered apartments for the elderly with car parking and other facilities, the first interested party council refused permission but the respondent secretary of state granted it on appeal. However, the inspector’s decision letter was subsequently quashed by consent because the respondent had failed to consider whether the proposal was a Schedule 2 application within the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (SI 1999/293), which required an environmental impact assessment (EIA) to be undertaken, before granting planning permission.The respondent later made a negative screening direction determining that the proposed development did not require an EIA. The appellant, who lived and worked in the area, obtained permission to apply for judicial review of that screening direction on the grounds that, inter alia, the respondent had misdirected himself as to the meaning of “significant effects on the environment” in Article 2 of Council Directive 85/337/EEC (the EIA Directive) (on the assessment of the effects of certain public and private projects on the environment).The application was dismissed on the grounds that the question of “significant effects on the environment” was a matter for the decision maker who possessed both knowledge of local conditions and the necessary expertise, and the decision maker in the present case had properly applied the correct test: [2011] EWHC 2010 (Admin), [2011] PLSCS 204.The appellant appealed, contending, inter alia, that a significant environmental effect was one that had a real prospect of influencing the outcome of the application for development consent and had an autonomous meaning. Underlying the procedure was the purpose of achieving a high level of environmental protection applying precautionary and preventative principles. The respondent contended that the test was whether the development was likely to have significant effects on the environment. Held: The appeal was dismissed.The test to be applied was whether the project was likely to have significant effects on the environment. The criteria to be applied were set out in the 1999 Regulations and judgment was to be exercised by planning authorities focusing on the circumstances of the particular case. The EU Commission’s Guidance on EIA Screening (June 2001) recognised the value of national guidance and planning authorities had a degree of freedom in appraising whether or not a particular project had to be made subject to an assessment. Only if there was a manifest error of assessment would the European Court of Justice intervene: European Commission v United Kingdom (Case C-508/03) [2006] QB 764 considered.The decision maker had to have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker might or might not be able to make a judgment as to the likelihood of significant effects on the environment. There might be cases where the uncertainties were such that a negative decision could not be taken. Subject to that, proposals for ameliorative or remedial measures might be taken into account by the decision maker. Establishing that the environmental effect will influence a particular development consent decision might well be a necessary requirement for a decision that development was EIA development but it was not determinative of whether the effects were likely to be significant and “ought to be considered”.The appellant’s proposed test did not accord with the overall purpose and tenor of the procedure initiated by the Directive. A formal and substantial procedure was contemplated, potentially involving considerable time and resources. It was contemplated for a limited range of Schedule 2 projects which were likely to have significant effects on the environment. To require it to be followed in all cases where the effect would influence the development consent decision would devalue the entire concept: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157, [2011] PLSCS 58 considered.In the present case, the inspector had been entitled to conclude that the proposed redevelopment would not have significant effects on the environment. A checklist had been completed and no complaint was made about its contents. Judgment was exercised and reasons given for the decision which justified the conclusion reached. Judgment had been exercised, not at the early stage of the procedure when such decisions were often made, but after full consideration of the planning issues by the local planning authority and also by an inspector appointed by the respondent. Full information as to the nature of the proposal and its likely effects had been available. James Pereira (instructed by Richard Buxton Environmental & Public Law solicitors, of Cambridge) appeared for the appellant; James Maurici (instructed by the Treasury Solicitor) appeared for the respondent   Eileen O’Grady, barrister