The statements by Lord Carnwath and Lord Hope in Walton v The Scottish Ministers [2012] UKSC 44 – a case involving the SEA Directive – are frequently cited as signalling a move away from the strict approach seen earlier in the courts to breaches of European law, and the discretion not to quash. However, it should be borne in mind that Lord Carnwath, in particular, was referring to situations “where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice”.
In R (on the application of Davies) v Carmarthenshire County Council [2015] EWHC 230 (Admin); [2015] PLSCS 57 the claimant applied to quash the decision of the local planning authority (“LPA”) to grant planning permission for a single wind turbine having a maximum height of 45 metres directly opposite two listed buildings of international cultural importance, namely the boathouse and writing shed occupied by Dylan Thomas on the estuary of the River Taf. (The resolution of the LPA’s planning committee was contrary to the planning officer’s recommendation.) This followed the adoption by the LPA of a negative screening opinion.
The claimant’s principal ground of challenge that the screening opinion was irrational, inadequately reasoned and in breach of Schedule 3 to the EIA Regulations in its failure to acknowledge the cultural and historic significance of the landscape.
The court allowed the claim, concluding not only that the reasoning of the screening opinion was inadequate but also that the screening opinion failed to address the environmental effect of the development proposal on the boathouse and writing shed, despite their cultural significance.
In relation to the court’s discretion not to quash the planning permission, the judge referred to the decision of the Court of Appeal in R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58. There the appeal judges had held a negative screening opinion to be inadequately reasoned. The majority had gone on to state that, as the adoption of a screening opinion formed part of a process that led to the grant or refusal of planning permission, if any strep in that process was flawed the process as a whole was flawed, and the planning permission would have to be quashed. The judge took the view that, in light of this decision, it was inappropriate for the court to exercise its discretion not to quash. Bateman remained good law in a case such as this.
John Martin is a planning law consultant
