Property law reports

Town and Country Planning: Environmental Impact Assessment

Environmental impact assessment (EIA) - screening opinion - claimant opposing planning application - defendant council considering EIA unnecessary - screening summary table placed on council register - whether council complying with requirement to provide screening opinion - regulations 5 and 7 of Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 - claim dismissed

R (on the application of Lebus) v South Cambridgeshire District Council: QBD (Mr Justice Sullivan): 27 August 2002

The claimant opposed a planning application to build an egg-production unit, and contended that an environmental impact assessment (EIA) ought to be carried out.

The relevant regulations were the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999.

These required an EIA for any development falling within schedule 2 that was likely to have a significant effect upon the environment by virtue of its nature, size or location.

By regulations 5 and 7, the council was required to provide a screening opinion, in writing, to determine whether a schedule 2 development was an EIA development, and that opinion was to be placed on the council's register.

The council took the view that all the relevant matters would be covered in sufficient detail without an EIA.

The reports of its planning committee made mention of a screening opinion, and a screening summary table was provided and placed on the register.

However, the register did not state categorically that a screening opinion had been made, nor did it elaborate upon what it had been.

The council reached the conclusion that the environmental impact of the proposed development could be reduced to insignificant levels, thereby rendering an EIA unnecessary, and granted planning permission.

The claimant sought judicial review, contending that the authority had, among other things, failed to provide a screening opinion.

Richard Harwood (instructed by Richard Buxton, Cambridge) for the claimant; James Findlay (instructed by the solicitor to South Cambridgeshire District Council) for the defendants.

Held: The claim was allowed.

Although the council had given consideration as to whether the proposal constituted an EIA development, its decision was flawed.

It had failed both to comply with the requirements of formality under the regulations, and to appreciate the need, under those regulations, to record the details of its consideration and to make them publicly available.

Moreover, in considering whether an EIA was necessary, the council was not entitled to proceed on the basis that the relevant information would be provided in sufficient detail in the planning application.

Town and country planning: Appeal

Planning appeal - sequential approach - reasons - claimant appealing against refusal of planning permission for non-food retail development - secretary of state refusing permission - whether procedural unfairness - whether secretary of state correctly applying sequential approach in PPG 6 - whether sufficient reasons given for decision - claim allowed

JJ Gallagher Ltd v Secretary of State for Transport, Local Government and the Regions and another: QBD: (Mr George Bartlett QC, sitting as a deputy judge of the division): 23 August 2002

The claimant applied to the second defendant council for planning permission to build a class A1 non-food retail park on a ten hectare site at the MetroCentre shopping complex in Gateshead.

Planning permission had previously been obtained for class A1 development on part of the application site.

However, the council refused the claimant's new application, and the claimant appealed to the secretary of state.

An inquiry was held, and the inspector recommended that permission be granted.

After requesting and receiving two addenda to the inspector's report, relating, among other things, to the need for the floorspace proposed, the secretary of state rejected the inspector's recommendation and dismissed the claimant's appeal.

The secretary of state took the view that the inspector had failed to carry out the sequential approach required by planning practice guidance 6 (PPG 6), pursuant to which priority was to be given to locations within, or on the edge of, town centres, and found that there were alternative suitable sites that were sequentially preferable.

He considered that PPG 6 imposed a 'class of goods' approach, whereby the test was whether there was any reason why goods of the class proposed to be sold in the development could not be sold from a town-centre site.

He did not refer in his decision to the earlier permission for part of the appeal site.

The claimant challenged the secretary of state's decision under section 288 of the Town and Country Planning Act 1990, on the grounds that: the post-inquiry procedures, under which the addenda were provided, were unfair, in that they had afforded the claimant no opportunity to comment, and had failed to comply with the requirements of rule 17(5) of the Town and Country Planning (Inquiries Procedures) Rules 2000; the secretary of state had misinterpreted PPG 6, since the 'class of goods' approach was relevant only to food retail; he had given insufficient reasons for his decision; and he had failed to take into account a material consideration, namely the earlier permission.

Ian Dove and Christopher Young (instructed by the Wood Glaister Partnership, Solihull) for the claimant; Timothy Mould (instructed by the Treasury Solicitor) for the first defendant; the second defendants did not appear and were not represented.

Held: The claim was allowed.

Whether a site was suitable for retail warehousing development, or whether such a development would be out of scale with the size of the town centre in which it was proposed, were matters of planning judgment, not of fact.

Since regulation 17(5) applied only to the latter, the secretary of state had been entitled to differ from the inspector on this point without following the regulation 17(5) procedure.

There was nothing unfair in the post-inquiry procedure adopted by the secretary of state.

He had been seeking additional conclusions on material that the claimant and the council had made available at the inquiry, and there was no need for the claimant to be involved at that stage.

The 'class of goods' approach (put forward in the government's response, in May 2000, to the second report of the Environment, Transport and Regional Affairs Committee) was applicable, and was not confined to food retail policy.

There was no inconsistency between that approach and the express words of PPG 6.

However, the secretary of state's application of the test was seriously flawed on the facts of the case.

He had given insufficient reasons for disagreeing with the inspector.

While it could not be inferred from his failure to mention the earlier grant of planning permission that he had left that matter out of account, there was an apparent inconsistency between the two decisions.

It had been incumbent upon the secretary of state to explain what it was that distinguished the earlier proposal from the present one, so as to justify the grant of permission in the one case and require refusal in the other, and he had failed to do so.

The claimant had been substantially prejudiced by the lack of an explanation, and the secretary of state's decision would be quashed: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 considered.