Younger Homes (Northern) Ltd v First Secretary of State and another

Developers applying for permission to develop brownfield site — First defendant under obligation to consider environmental impact before granting planning permission — First defendant relying upon screening opinion produced by second defendant council — Claimant challenging validity of opinion — Claim dismissed In July 1999, a group of developers sought planning permission for a retail and leisure development on a brownfield site. The application was called in and the first defendant Secretary of State informed the parties that the application would be granted subject to an agreement under section 106 of the Town and Country Planning Act 1990, which tied the developers to certain infrastructure improvements. One of the developers sold its share of the site to the claimant, which wished to develop the land for housing. The claimant asked the first defendant to reopen the inquiry. That request was refused, and planning permission was issued as originally conceived: the section 106 agreement was signed by the remaining original developers. Under regulations 6 and 8 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, the first defendant was under an obligation to subject any development likely to have a significant effect upon the environment to an environmental impact assessment. In order to fulfil that obligation, the first defendant had relied upon a screening opinion produced by an officer of the second defendant local planning authority. The claimant challenged, inter alia, the validity of that opinion and, therefore, the validity of the grant of planning permission under section 288 of the Town and Country Planning Act 1990. Held: The claim was dismissed. On the evidence, a screening opinion, in the form of a handwritten note, had been produced by the second defendants’ principal planning officer, which the claimant maintained was a non-delegable function of the director of environmental services. However, in the light of the authoritative decisions in Cheshire County Council v Secretary of State for the Environment [1988] JPL 30 and Provident Mutual Life Assurance Association v Derby City Council [1981] 1 WLR 173, and on the evidence, the principal planning officer did have the necessary authority to produce such a document if that power were exercised in the name of the necessary authority. The document did not have to be signed as such. The contents and structure of a screening opinion were not to be subjected to legalistic technical scrutiny. In the instant case, the brief comments in the screening opinion as to road traffic issues were proportionate, comprehensible and sufficient. The author of such a document was not required to consult other parties, although he was implicitly obliged, as part of the decision-making process, to avail himself of the necessary information in order to produce the opinion. In this case, the planning officer had extensive knowledge of the particular site, and sufficient understanding of the proposed development to enable him to reach a proper opinion about such issues as contaminants and potential significant environmental effects. He was not obliged to approach the screening opinion as though this had been his first exposure to such a development. Richard Harwood (instructed by Eaton Smith, of Huddersfield) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; Vincent Fraser QC (instructed by the solicitor to Calderdale Metropolitan District Council) appeared for the second defendants. Vivienne Lane, barrister