Planning permission – Environmental assessment – Infrastructure project – Defendant local authority granting planning permission for demolition and relocation of sports pavilion – Interested party seeking permission to apply for judicial review of decision – Interested party applying to strike out claim – Whether proposed development constituting “urban development project” or “infrastructure project” requiring environmental impact assessment – Whether statement of case disclosing no reasonable grounds and abuse of court’s process – Applications dismissed
A college (the interested party) applied for planning permission to demolish its existing sports pavilion and to relocate it to a new site allocated as protected open space. The new building had been designed to accommodate changing facilities, a tea room, visitor facilities and officials’ changing and was in linear form with an open veranda for spectators and team members, all underneath a gable and roof, which had a low roof height of 2.5 metres rising to a ridge of eight metres. A number of local residents, including the claimant, opposed the application but the defendant local authority decided to grant full planning permission.
The claimant sought permission to apply for judicial review of that decision contending, inter alia, that the proposed development fell within the scope of the Town and Country Planning (Environmental Impact Assessment) Regulations 2001 (SI 2001/1824) as it was a Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location with an area exceeding 0.5 hectares. Accordingly, it was an urban development project within Schedule 2, paragraph 10(b) that required a screening opinion to be issued under the regulations, without which the grant of planning permission was unlawful.
The interested party applied to strike out the claimant’s statement of case pursuant to CPR 3.4(2) as an abuse of the court’s process and because it disclosed no reasonable grounds for bringing the claim.
Held: The applications were dismissed.
(1) The demolition of the existing pavilion and the construction of a new sports pavilion did not amount to an urban development project. Schedule 2, paragraph 10 was headed “infrastructure projects”. All of the developments listed in paragraph 10(a)-(p) were precisely that, i.e. infrastructure projects. On any true meaning of the construction of the phrase “infrastructure projects”, the construction of a small sports pavilion on a small sports pitch could not be classed as an infrastructure project. Paragraph 10(b) supported that view by referring to the construction of shopping centres and car parks, sport stadiums, leisure centres and multiplex cinemas. Further, the guidance of the European Commission, entitled Interpretation of Definitions of Certain Project Categories of Annex I and II of the EIA Directives (2008), advised that the word “infrastructure” was to be given a wide interpretation and might include roads, power and other utility services to facilitate the growth of industries. The sports pavilion in the present case was a far cry from a sports stadium or a leisure centre: R (on the application of Goodman and another) v Lewisham London Borough Council [2003] EWCA Civ 140, [2003] 2 PLR 42 applied.
(2) In any event, there was no reasonable basis for the defendants concluding that significant environmental effects were likely. It was clear from the planning officer’s report, the committee report and the correspondence that the defendants had taken the view that the development was not likely to have significant effects on the environment by virtue of factors such as its nature, size or location and they were entitled to do so. This was a lawful exercise by the defendants of their planning judgment and the conclusion that the proposal would not lead to any material intensification in its use of the sports ground and would not significantly worsen the existing access situation was unimpeachable: Grampian Regional Council v City of Aberdeen [1984] JPL 590 considered.
(3) The claimant had not shown that there was an arguable case that a ground for seeking judicial review existed which merited full investigation at a full hearing oral hearing with all the parties and all the relevant evidence. Therefore the application for permission to seek judicial review would be dismissed.
(4) As regards the strike out application, it was important that the court exercising its discretion should consider alternative possibilities and consider whether striking out the claim would be disproportionate. Only in a case of flagrant abuse would a court be likely to strike out an action where a fair trial was still possible. In the present case, the interested party, and presumably the local authority, had received the claimant’s detailed statement of facts and grounds which was substantial and clear. In all the circumstances, it could not be said that the case disclosed no reasonable grounds for bringing or defending the claim. The strike out procedure was supposed to be a summary procedure. In fact, in the present case it had become inextricably interwoven with the application to apply for judicial review. In those circumstances, the court was not prepared to exercise its discretion to strike out the claim after such a substantial hearing: Asiansky Television plc v Bayer Rosin [2001] EWCA Civ 1792 considered.
Richard Buxton (instructed by Richard Buxton Environmental & Public Law) appeared for the claimant; The defendants did not appear and were not represented; James Pereira (instructed by Eversheds) appeared for the interested party.
Eileen O’Grady, barrister
