R (on the application of The Noble Organisation Ltd) v Thanet District Council

Environmental impact assessment — Screening opinion — Reserved matters — Whether council entitled to take account of fact that EIA had been considered unnecessary at outline stage — Whether council unlawfully deciding not to require EIA for approval of reserved matters — Appeal dismissed An interested party applied to the respondent council for outline planning permission for a leisure development. The proposed site comprised one plot on an area of land that had planning permission for a business park. The council produced a screening opinion, under article 4(2) of Directive 85/337/EEC, concluding that no environmental impact assessment (EIA) was necessary. The development would not be larger than, or different in nature from, the approved business park scheme, and would not give rise to a significant additional environmental impact. The council granted outline planning permission and subsequently approved an application on reserved matters, including proposals for a cinema, restaurants and a leisure centre. A further screening opinion concluded that no EIA would be required for those proposals. The appellant sought judicial review of the council’s decision. However, the judge held that the council were entitled to have regard to the two planning permissions for the leisure park and to the screening opinion confirming that an EIA was unnecessary, none of which had been challenged. Moreover, the council had properly considered whether the reserved matters might have significant environmental effects: [2004] PLSCS 266. The appellant appealed. The issues raised were whether the approval should be quashed because: (i) it was “in substance” based upon a comparison with the grant of the business park permission; (ii) it was based upon a comparison with the leisure park permission, which permitted development likely to have significant environmental effects; (iii) the conduct of the screening exercise in relation to the approval of reserved matters was perverse; (iv) the formal validity of the planning permissions and the screening opinion provided a defence even if they were unlawful; and (v) the matter should be referred to the European Court of Justice (ECtJ) for a ruling upon the effect of EU law. Held: The appeal was dismissed. 1. The judge had rightly considered that “the essential comparison” was with the leisure park permission and not that pertaining to the business park. 2. It was a matter for the council’s planning judgment as to whether they had sufficient information before them at the outline planning stage to enable them to determine whether a development was likely to have significant environmental effects and would therefore require an EIA; this would be challengeable only on a Wednesbury basis. It had been appropriate for the council to compare potential environmental effects with those already present, and there was no basis for such a challenge. 3. The conduct of a screening exercise at the approval of reserved matters stage was not perverse. The judge had properly characterised the screening opinion as partly a comparative exercise and partly an examination of reserved matters. The reserved matters application was made pursuant to an extant permission for the leisure park. If the council had not taken that permission into account, as distinct from the reasons for granting it, they would have failed to have regard to a relevant consideration. 4. It was clear in law and on the facts that the appellant could not challenge, directly or indirectly, either of the outline planning permissions or the screening decision. The domestic law principle, that administrative acts were valid unless and until quashed by a court, was clear, and had been correctly applied by the judge. Both permissions and the screening opinion had been challengeable by judicial review, if sought promptly, which was a sufficient remedy under Community law. 5. It was unnecessary to make a reference to the ECtJ since the answers to the proposed questions were clear and did not allowed for any reasonable doubt: R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions [2004] 1 CMLR 31 considered. Richard Gordon QC and James Pereira (instructed by SJ Berwin) appeared for the appellant; Alice Robinson (instructed by the legal department of Thanet District Council) appeared for the respondents; Christopher Katkowski QC and David Blundell (instructed by Richards Butler and Cripps Harries Hall) appeared for the interested parties, Rosefarm Estates plc and Rank Group plc. Eileen O’Grady, barrister