Jedwell v DH & Anor

On 12 July 2013 the Denbighshire County Council (“the Council”) granted conditional planning permission for the erection of two 46-metre high 50kw micro-generation wind turbines with a control box and access track at a farm called Syrior Farm on the outskirts of Llandrillo, Denbighshire. Before granting that permission the Council, through one of its planning officers, Mrs Denise Shaw, adopted a screening opinion stating that no Environmental Impact Assessment (“EIA”) was required. Mr Jedwell, a local resident opposed to the scheme, says that the reasoning in that screening opinion was inadequate; that the inadequacy was not cured by subsequent events, and that in consequence the grant of planning permission was itself invalid. His challenge to the grant of planning permission by way of judicial review was rejected by Foskett J.

Although the application site is not itself within any specially protected area it is close to many. The judge recorded that it is within 4km of the Snowdonia National Park, just over 6km from the Clwydian Range and Dee Valley Areas of Outstanding Natural Beauty (“AONB”) and within 4km of two separate Landscape of Historic Interest Areas, Y Berwyn and Y Bala a Glannau Tegid. The nearby Berwyn Mountains are a designated Special Area of Conservation (“SAC”), Special Protected Area (“SPA”), Site of Special Scientific Interest (“SSSI”) and a National Nature Reserve (“NNR”). The Mynydd Mynyllod local wildlife site is about 400 metres to the north of the application site and the Unitary Plan designated AONB is about 2km to the south-east. The farm is within the Mynydd Mynyllod LANDMAP Character Area in the Denbighshire Landscape Strategy which has been evaluated as having a “high” visual and sensory aspect of County and regional importance. The application site also lies immediately adjacent to what was then a proposed wind energy development at Mynydd Mynyllod, and approximately 2.2km from an existing wind farm development at Braich Ddu. At the time of the events with which we are concerned no formal application for planning permission for development at Mynydd Mynyllod had been submitted.

Mrs Shaw, who was the newly-appointed planning officer dealing with renewable energy, visited the site in February 2012; and following her visit wrote to the applicants’ agent drawing attention to the possibility that an EIA would be needed. Indeed her letter said that an EIA was “usually required” where the hub height of a turbine exceeded 15 metres, as these would. On 23 February 2012 the applicants’ agents wrote to Mrs Shaw asking for a screening opinion. They argued that no EIA was required because the proposed development was small scale local development with no wide-ranging impacts.

Early in the following month Mrs Shaw consulted Countryside Council for Wales (“CCW”) on the need for an EIA. CCW’s reply of 15 March 2012 was expressly said to be “without prejudice to comments we may wish to make when consulted on any subsequent planning application or on the submission of more detailed information.” The two paragraphs of particular relevance were as follows:

“Environmental Impact Assessment (EIA)

The proposed hub heights of the turbines are 35.4m, and therefore the scheme maybe considered a Schedule 2 development as defined by the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. However, in terms of likely impacts on natural heritage features, CCW believe an EIA will not be necessary. We do however advise that certain surveys and assessments are submitted as part of any subsequent planning application. Our detailed comments are as follows . . . .”

“Landscape

Whilst not located within the boundaries of any statutory protected designated landscapes, we note that the application site lies immediately adjacent to the proposed Scottish Power Renewables wind energy development at Mynydd Mynyllod, and approximately 2.2km from the existing wind farm development at Braich Ddu. Consequently, in order to properly assess the cumulative impact of this wind energy development with others in the locality (either existing or within the planning process), we advise that the Applicants undertake a Landscape and Visual Impact Assessment (LVIA) appropriate to the proposals scale and location. For guidance in undertaking the assessment, we refer you to Guidelines for Landscape and Visual Impact Assessment, 2nd edition, 2002, The Landscape Institute and CCW's LANDMAP Information Guidance Note 3 (Nov 2008). We advise that the LVIA includes a map of the Zone of Theoretical Visibility (ZTV) as it will give a better understanding of the extent of visibility and over what distances and from which locations and receptors the visual effects are likely to be significant. Furthermore, a second ZTV map should be produced which shows the cumulative impact of this wind energy proposal with those mentioned above.”

On the same day Mrs Shaw, on behalf of the Council, adopted and issued a screening opinion stating that no EIA would be required (“a negative screening opinon”). Section A of the opinion described the proposed development, and correctly said that it was what in the jargon is called a “Schedule 2 category” because of the hub height of the proposed turbines. Section B contained the determination that an EIA was not required. It was preceded by a formal rubric which stated:

“Consideration has been given by the Local Planning Authority to the relevant selection criteria in Schedule 3 to the Regulations, the general guidance contained in EIA Circular 11/99, and any indicative criteria in Annex A of the Circular and in the case of the Schedule 2 development, whether it is a sensitive area under Regulation 2(1)”

Section C gave the reasons for the Council’s decision. It said:

“Having regard to the guidance given in the Regulations and the Circular, the proposed development would not give rise to significant effects in this instance.”

The covering letter accompanying that opinion said that although a negative screening opinion had been issued the Council would still expect “detailed supporting information to be submitted with the planning application.” It also set out CCW’s response about landscape that I have already quoted together with some other observations about protected species. It did not, however, relay CCW’s informal view that no EIA was required.

The application for planning permission came before the Planning Committee on 17 October 2012. As one might expect the Committee were given a detailed report by the officers of the Council. The report noted that CCW had said that the cumulative effect of the proposal had not been considered. CCW’s position was that they objected to the proposal until such time as sufficient information had been provided to overcome their concerns. A number of individual objectors had also objected on the ground of the cumulative impact of the proposed development. The officers recommended refusal of the application. In suggesting reasons for refusal the report stated:

“It is the opinion of the Local Planning Authority that the erection of 2 no. 46 metre high 50KW turbines in this location would have an adverse impact on the setting of protected landscape areas… and have a detrimental impact on the open character and visual quality of Mynydd Mynyllod, a non-statutory landscape of county/regional importance, resulting in adverse visual effects when viewed from parts of north Berwyn, public access and public rights of way in the area. It is also the opinion of the Local Planning Authority that insufficient information has been provided to demonstrate the proposal will not give rise to adverse cumulative effects when considered in combination with operational and consented windfarm development, and in particular the Braich Ddu windfarm. In conclusion the harmful landscape impacts are considered to significantly outweigh the benefits of increased renewable energy generation…”

The Committee decided to defer making a decision on the application in order to allow the applicants time to address the queries raised by CCW. Following that meeting, on 22 January 2013 Mr Broughton, a local resident and part of a group opposed to the development, wrote to the planning officer. He said that the screening opinion had given no indication that the cumulative effect of the proposal had been considered, and that this was a “potentially serious problem” with the screening opinion. He ended by saying that the cumulative effect of the proposal “should be considered”. The Council did not reply to that letter.

By the time that the application came back before the committee the applicants had been in correspondence with CCW. The applicants had questioned the need to include the potential impact of the proposal on the Mynydd Mynyllod scheme, because an application for planning permission for that scheme had not been made. CCW took the view that the scheme was reasonably foreseeable and should therefore be included in the cumulative impact assessment. This divergence of views was reported to the committee in the officers’ report. Although the officers considered that little weight should be apportioned to the cumulative impact on the Mynydd Mynyllod scheme because no application for planning permission had yet been submitted, they nevertheless concluded that there were “potentially significant harmful landscape impacts”; and once again recommended refusal. The suggested reason for refusal was principally the adverse impact on the landscape which, in their view, significantly outweighed the benefits of increased renewable energy generation.

In a close vote, on 20 February 2013 the Committee decided to reject their officers’ recommendation and resolved to grant planning permission. Following the resolution to grant permission Mr Jedwell’s solicitors, Richard Buxton, sent the Council a pre-action protocol letter on 4 April 2013. One of the potential grounds of challenge was that an EIA had not been obtained. What the letter said about the screening opinion was:

“The screening opinion gave no apparent consideration to whether EIA would be required on the basis of the development’s cumulative impact with other developments as it was required to do (see schedule 4, paragraph 4). In particular, no regard was had to the potential for cumulative environmental effects with the existing Braich Ddu wind farm and the proposed Mynydd Mynyllod wind farm.”

It went on to say that:

“The Council’s screening opinion does not inform the reader as to how the Council reached their negative screening opinion.”

The conclusion asserted was that the screening opinion was flawed and that in consequence the grant of planning permission was unlawful. In its reply of 29 April 2013 the Council said that sections B and C of the screening opinion had stated in terms that the guidance in Circular 11/99 had been considered and that it was inconceivable that the author of the screening opinion had failed to take into account paragraph 46 of that Circular which referred to the possible cumulative effects of development. It pointed out that CCW had also drawn attention to the cumulative effects of the proposed development and had said that a ZTV map should be produced showing that cumulative effect. The letter asserted that:

“It would be simply wrong to consider that the officer who carried out the screening exercise was ignorant of this advice.”

The letter went on to say that although CCW, the Snowdonia National Park and the AONB Joint Advisory Board had all objected to the development, none had suggested that it was EIA development. Although both objectors and the Council’s own planning officers had made the point that there would be a cumulative adverse impact on landscape and visual amenity, it did not follow that that impact was “significant” for the purposes of the EIA Regulations. In addition to these points the letter said in paragraph 4.2.5:

“Without prejudice to preceding paragraphs, there is … no absolute requirement under the EIA Regulations 1999 … that reasons appear on the face of a negative screening opinion: see R (Mellor) v SSCLG Case C-75/08 [2010] Env LR 2. The Council accepts that the underlying reasons must at least be available upon request. However, no such request has been made by or on behalf of the Proposed Claimant.”

The letter noted that in this respect the law in Wales differed from the law in England.

On 1 May 2013 Richard Buxton replied:

“… with regard to your paragraph 4.2.5, please could you provide any further reasoning for the screening opinion that was made. By this we mean contemporaneous reasons, and when you respond please could you confirm that what you send is just that.”

The Council replied on 22 May 2013 that having checked with the “client department there is nothing further to add to what has already been said”. They did, however, include a copy of Mrs Shaw’s covering letter of 15 March 2012 which had been sent with the screening opinion.

Planning permission was granted, in accordance with the resolution to grant, on 12 July 2013. The JR claim form was issued in August.

The judge held at [79] that the reasoning disclosed thus far was inadequate, but also held at [80] that the position was rescued by a witness statement that Mrs Shaw made on 1 October 2013, a month after issue of the claim form and some 18 months after the grant of planning permission, although it was not served until later.

Although it is not the order in which the grounds of appeal have been formulated I think that the logical order in which to deal with the issues is to answer the following questions:

The requirement for an EIA in certain cases is the result of Directive 2011/92/EU. This was a codification of Council Directive 85/337/EEC together with certain amendments. The regulations transposing that directive require an EIA to be prepared for “EIA development”. EIA development falls into two categories:

Whether development is Schedule 1 development is a question of description. But whether development is Schedule 2 development is not just a question of description: it also involves a value judgment both on the question of likelihood and also on the question of significance.

The position in England (but not Wales) is now governed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, regulation 4 (7) of which provides that where a local planning authority adopts a screening opinion:

“…that opinion … shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion.”

The position in Wales continues to be governed by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. That is because the period for transposing Directive 2011/92/EU will not expire until 16 May 2017. The obligation to give reasons under regulation 4(6) of the 1999 Regulations only applies where the local planning authority adopts a screening opinion to the effect that:

“development is EIA development”

Accordingly, although the Regulations applicable to the proposal required reasons to be given if the planning authority decided that the proposed development was EIA development, the Regulations themselves did not require reasons to be given if the decision was that the proposal was not EIA development. However, an obligation to give reasons for a negative screening opinion exists as a matter of EU law. That is the result of the decision of the European Court of Justice in (Case C-75/08) R (Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 18. This was a decision on Directive 85/337 which, unlike Directive 2011/92/EU, did not contain an express requirement to give reasons when adopting a negative screening opinion. The relevant parts of the court’s decision are in paragraphs [57] to [60]:

“57 It is apparent, however, that third parties, as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary.

58 Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority's screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.

59 In that regard, effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request (see Heylens v Union nationale des entraineurs et cadres techniques professionnels du football (Unectef) (222/86) [1987] E.C.R. 4097 at [15]).

60 That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made.”

The court then turned to the question: what reasoning would satisfy the duty? Its answer to that question was given in paragraphs [64] to [66]:

“64 In that case, the determination must be such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention.

65 It cannot, in those circumstances, be ruled out that in the case in the main proceedings the Secretary of State's reasons might be considered sufficient, taking into account, in particular, factors which have already been brought to the attention of interested parties, provided that the latter can ask for and obtain from the competent authorities, subject to judicial review, the necessary supplementary information to fill any gaps in that reasoning.

66 The answer to the second and third questions is therefore that, if a determination of a Member State not to subject a project falling within Annex II to Directive 85/337 to an EIA in accordance with arts 5–10 of that directive states the reasons on which it is based, that determination is sufficiently reasoned where the reasons which it contains, added to factors which have already been brought to the attention of interested parties, and supplemented by any necessary additional information that the competent national administration is required to provide to those interested parties at their request, can enable them to decide whether to appeal against that decision.”

This court gave further consideration to the standard of reasoning in R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157. That case concerned a proposal to extend a grain storage and handling facility situated near the village of West Wratting close to the A11 trunk road. The local planning authority issued a negative screening opinion, accompanied by a letter from a senior planning officer. The letter gave the Council’s reasons for its decision in five numbered paragraphs. It described the development, stated that the site was not within the floodplain or in an area of high-medium flood risk, that no public right of way was affected by the proposal, and there were no Tree Preservation Orders within the site. In addition, the proposal did not affect a Scheduled Ancient Monument and the development was not within an environmentally sensitive area. It then set out the likely main impacts of the development namely: increase in traffic movements, landscape impact, and noise disturbance to nearby residents. The letter concluded in paragraph 5:

“Having regard to the selection criteria in Schedule 3 to the Regulations, particularly noting the size of the development, cumulation with the existing development and potential impact, it is considered that this major development will not have more than local importance, will not be proposed for a particularly environmentally sensitive or vulnerable location, and will not have unusually complex and potentially hazardous environmental effects.”

By a majority this court held that the reasoning was inadequate. At [11] Moore-Bick LJ (with whom Jackson LJ agreed) referred to a previous decision of this court in which it was held that the opinion need not be elaborate, but must demonstrate that the issues have been understood and considered. Having warned against imposing too high a burden on local planning authorities in issuing negative screening opinions Moore-Bick LJ said at [21]:

“… it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request.”

Moore-Bick LJ then turned to the screening opinion in issue in that case. At [22] he said:

“It is true that the planning officer's reasons must be read in the context of the letter to which they were a response, but nowhere in them does one find set out a clear statement of her reasons for concluding either that there will be no discernible effects in relation to traffic movements, landscape or noise, or that, if there may be, they will not be sufficiently serious to be regarded as significant. Paragraph 5 does not take one far in that direction because it is little more than a recital of paragraph 33 of Circular 02/99, which the officer appears to treat as encapsulating the criteria that have to be met before an EIA is required.”

At [27] and [28] he concluded:

“[27] Nothing has been put before us to suggest that the planning officer's decision in this case was not carefully and conscientiously considered, nor do I think it can be said that it was not in fact based on information that was both sufficient and accurate. However, I have, somewhat reluctantly, come to the conclusion that the reasons given for her decision do not make it sufficiently clear why she reached the conclusion that an EIA was not required in this case. That is not to suggest that she may not have had perfectly good reasons for reaching that conclusion, just that it is not clear what they were. Although the matters referred to in paragraph 3, which refers to the risks of flooding, public rights of way, tree preservation orders, ancient monuments and environmentally sensitive areas, are of importance in themselves, they were not aspects of the environment that were potentially at risk and so did not require detailed consideration. Paragraph 5 contains the whole of her reasoning in relation to the effects that were of potential significance.

[28] It is perhaps unfortunate that the planning officer chose to express her decision in the language used in paragraph 33 of Circular 02/99, because the three criteria to which it refers are couched in terms so broad that they offer only general guidance in relation to the kind of projects that are likely to require an EIA. However, the same criticism could have been made had she expressed her reasons in terms of what is described in paragraph 34 as the “basic test”, namely, that she has not made it clear why she did not consider the test to be satisfied. One can, I think, infer that the planning officer had considered the three matters to which she referred in paragraph 4 and that she may have accepted Savills' arguments in relation to them. She may have thought that conditions could be imposed on any grant of planning permission to ensure that the effects would not be significant. The difficulty is that one does not know and cannot safely infer what her reasons were. In my judgment, therefore, the opinion does not comply with the requirements laid down in Mellor.”

Following the hearing Mr Hunter supplied us with a copy of Mackman v Secretary of State for Communities and Local Government [2015] EWCA Civ 716. All that that case demonstrated, to my mind, was that whether adequate reasons have been given depends on the facts. On the facts of that case the court was able safely to infer that the cumulative impact of the proposed development had been considered, and that there was nothing in the screening opinion “which cries out for further explanation”: see [21].

In Bateman Moore-Bick LJ expressly noted that the planning officer might have had “perfectly good reasons” for her opinion, but that it was not clear what they were. However, the local planning authority took its stand on the screening opinion itself, and did not attempt to supplement the reasoning.

In our case what the Council said in section C of the screening decision was, in my judgment, simply the statement of a conclusion. It contained no reasoning at all. A reader of the opinion would ascertain what decision the Council had made, but not why it had made it. It is, in my judgment, clear that the original screening opinion was inadequately reasoned.

What the Council was required to demonstrate was that it had “actually determined” whether an EIA assessment was needed in accordance with the law: see Mellor at [57]. For that purpose it needed to demonstrate that it had applied its own mind to the relevant questions. Accordingly, in my judgment the Council’s reliance in its letter of 29 April on the views of consultees was misplaced; and in any event since the consultations (apart from the informal consultation with CCW) took place after the screening opinion was adopted the views of the other consultees cannot have played any role in fact on the Council’s decision. The letter of 25 April also referred to the advice of CCW that the cumulative impact of the scheme should be considered. But CCW’s advice about cumulative impact was in fact directed to the planning process itself rather than to the question whether the development was EIA development. Although the letter asserted that it would be wrong to conclude that the officer was ignorant of that advice, it did not assert that the officer in fact followed it. Moreover, even if that letter is to be taken as an assertion that the officer did follow CCW’s advice, it did not explain how that had been done. Several pertinent questions remained. Did the officer consider that there was no cumulative impact? Did she consider that there was some cumulative impact but that it was not likely to be significant? CCW did not suggest in their e-mail of 15 March 2012 that any less weight should be given to the Mynydd Mynyllod scheme than to the existing wind farm at Briach Ddu. Did the officer consider the Mynydd Mynyllod scheme as CCW had suggested, or was it ignored or downgraded on the basis that no application for that scheme had yet been submitted? These were matters that did cry out for further explanation. I do not consider that the letter of 29 April 2013 repaired the deficiency in the reasons given in the original screening opinion.

The next question is whether Richard Buxton made a valid request for further information in the letter of 1 May. The judge thought that they had, and I agree with him. Although Mr Easton and Mr Hunter both valiantly argued that, seen in context, this was a request limited to contemporaneous documents, I found their arguments unconvincing. Paragraph 4.2.5 of the Council’s letter of 25 April had specifically referred to Mellor and the possibility of asking for further information. Richard Buxton’s letter of 1 May was a direct response to that paragraph, and that paragraph alone. It asked for contemporaneous reasoning (not, be it noted, simply contemporaneous documents) to explain the Council’s decision. In my judgment it was plainly the kind of request that Mellor contemplated (“a Mellor request”).

The Council’s response was not simply to the effect that they had examined the file, but went further and said that a check had been made with the client department, which must have been the planning department. Nor do I consider that supplying a copy of Mrs Shaw’s covering letter of 15 March 2012 explained why she had reached the conclusion that she did. Since the Council simply replied that it had nothing further to add, I consider that at the date when the claim form was issued the Council was in breach of its legal duty to give adequate reasons for its decision following a Mellor request.

It follows therefore that the next question is whether Mrs Shaw’s evidence given in the course of the judicial review proceedings was capable of curing that deficiency. In Mellor the court considered that the purpose (or at least one of the purposes) of requiring the competent authority to give reasons for a negative screening opinion was to enable an interested person to decide whether to challenge it by proceedings. Thus at [59] the court said:

“…interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts.” (Emphasis added)

At [64] the Court said:

“… the determination must be such as to enable interested parties to decide whether to appeal against the determination in question…” (Emphasis added)

At [66] the court repeated that the standard of reasoning must be such as:

“[to] enable them to decide whether to appeal against that decision.” (Emphasis added)

That view was repeated again in the dispositif. These passages seem to me to contemplate that the reasons, if asked for, must be given before the proceedings are begun. Mrs Graham Paul emphasised that the question was not whether the Council had adequate reasons for adopting the negative screening opinion, but whether it had adequately communicated those reasons. The public, she said, is entitled both to have reasons and to have access to justice with the benefit of those reasons.

In Mellor the court did not expressly consider the questions (a) whether a competent authority faced with a request for reasons could have multiple attempts to supply the reasons (as Mrs Graham Paul put it “in dribs and drabs”) or whether there was only one chance to make up the deficiency; or (b) whether there was any applicable time-scale within with the reasons had to be given in order to comply with the duty under EU law. The Advocate-General did give some consideration to the second of those questions. She said:

“45 In the Community system the statement of reasons for a measure must in principle be communicated to the person concerned at the same time as the measure that adversely affects him. The absence of a statement of reasons, or a manifestly inadequate statement of reasons, cannot (in principle) be cured by the fact that the person concerned learns the reasons for the measure during the procedure before the Community judicature. That, however, corresponds to the strict factual and legal delimitation of the subject-matter of the case by the system of application and defence. Since an applicant may not in general enlarge his claim, procedural equality of arms would be endangered if the defendant institution were able simply to amplify its statement of reasons during the proceedings.

46 It would not be impossible, however, to take a more generous attitude to the curing of defective statements of reasons in the context of a procedural law with a different structure. That is conceivable in particular where the subject-matter of the application is open as regards means of legal challenge, that is, legal objections to the contested decision, or where extensions of a claim are permitted in the course of the judicial procedure. These are questions of national procedural law, however.”

I am inclined to think that once a Mellor request for reasons has been made, a competent authority must supply those reasons within a reasonable time; and that a breach of the legal obligation to supply reasons cannot arise until a reasonable time has elapsed. I cannot see any warrant for concluding that a competent authority is limited to one further statement of reasons. Since the purpose (or one of the purposes) of supplying reasons on request is to enable a potential challenger to decide whether to apply to court for legal redress, I am also inclined to think that even if a reasonable time has elapsed for the provision of reasons the competent authority may still cure the deficiency by supplying reasons or further reasons before the application to the court is actually made.

In R (Burridge) v Breckland DC [2013] EWCA Civ 228, [2013] JPL 1308 Pill LJ held that a planning authority’s obligation to give reasons could not be satisfied by “a statement made months after the event as to the state of mind, unexpressed at the time, of the officer on a question he did address at the time”: see [52]. However, a majority of this court (Davis LJ and Warren J) held that evidence given by a planning officer in the course of judicial review proceedings was admissible to explain that the local planning authority had considered whether a fresh screening opinion was required in the light of an amendment to an application for planning permission. Commenting on Mellor, Davis LJ said at [88]:

“It is true that that authority requires that, if an interested party so requests, the planning authority must thereafter communicate with him the reasons for the determination, so that he knows the basis on which he may appeal. In the present case the judge expressly found in paragraph 36 of his judgment – and it is not challenged – that the points made by Mr Moys in his witness statement were made in substance by the council in its letter of 19th January 2012 (which letter is also itself to be set in the context of the first screening opinion and the two reports to the council) before these proceedings were commenced.”

That, as it seems to me, is not this case. I do not consider that the substance of Mrs Shaw’s witness statement had been disclosed to Mr Jedwell before this claim was brought. Mrs Graham Paul argued that once the Council had said in their letter of 22 May 2013 that there was nothing more to add to what they had already said, Mr Jedwell was entitled to take his stance. He had asked for reasons for the negative screening opinion; reasons had been given; and if those reasons were still deficient then the screening opinion was invalid and the planning permission should be quashed. It was not open to the Council to adduce Mrs Shaw’s witness statement. In short, the purpose of the witness statement was to add a lot more reasoning to the reasons that the Council had thus far given, and therefore directly contradicted the Council’s statement of 22 May 2013 that there was nothing more to add. A variant of this argument was that by the time that (a) a reasonable time had elapsed since the making of the request for reasons and (b) Mr Jedwell had acted on the information thus far provided by issuing his JR claim form, it was too late for the Council to advance new evidence purporting to explain the original reasoning process that led to the adoption of the negative screening opinion. On either variant of this argument Mrs Shaw’s evidence was simply irrelevant and should not have been admitted at all. However, this point was not taken before the judge and Mrs Shaw’s evidence was admitted without objection. Although I see the force of the argument, I do not think that it is one which can be raised for the first time on appeal. The qualification to this way of putting the case, which I think that Mrs Graham Paul accepted (at least at one stage in her argument), was that even if that evidence was irrelevant and inadmissible to avoid a finding that the Council had been in breach of its obligation under EU law, it would potentially have been admissible on the question whether, in the exercise of its discretion, the court should quash the planning permission. I do not think that either Mr Easton or Mr Hunter argued strenuously against that way of putting the case; and it seems to me to be right.

I should mention that at another stage in her argument Mrs Graham Paul argued that if a procedural defect in the EIA process amounting to a breach of EU law had been identified the court should quash the planning permission without more ado. If and to the extent that there was a discretion, it was a very narrow one. In my judgment that submission cannot stand with the decision of the Supreme Court in R (Champion) v North Norfolk District Council [2015] UKSC 52, [2015] 1 WLR 3710 at [58]. In that case the court expressly considered the decision of the Court of Justice in (Case C-72/12) Gemeinde Altrip v Land Rheinland-Pfalz [2014] PTSR 311 (upon which Mrs Graham Paul relied) in reaching its conclusion. Mrs Graham Paul submitted that the law had since moved on as a result of the decision of the Court of Justice in (Case C-137/14) European Commission v Federal Republic of Germany. However in that case the Court was doing no more than applying Altrip as is clear from its approving references to that case at [47], [55], [59] and [60]. In my judgment we are still bound by Champion.

The claim form was issued on 14 August 2013 more than three and a half months after the Mellor request and nearly three months after the Council’s response. I would hold that at the date when the claim form was issued the Council was in breach of their obligation under EU law to provide reasons in response to a request.

The Council’s acknowledgement of service and grounds of resistance were dated 12 September 2013. There was no indication even at that stage that witness evidence was to be called to add to the reasons thus far provided. Mrs Shaw’s witness statement was made on 1 October 2013. The Council did not, so far as I can see, make any attempt to justify the late adduction of Mrs Shaw’s evidence. On the other hand, although Mrs Graham Paul cautioned the court against placing significant weight on that evidence she did not actually object to its admission.

On 1 April 2014 Mr Jedwell issued an application notice asking for permission to call and cross-examine Mrs Shaw on her witness statement. His Reply dated 23 January 2014 had already drawn attention to alleged discrepancies between Mrs Shaw’s witness statement and what had previously been said on the Council’s behalf. The application for cross-examination repeated the points made in the Reply.

What Mrs Shaw said in her witness statement was this:

“11.

My analysis of the Screening Request included an assessment of the impact of the proposal on relevant environmental receptors, but in particular on the statutory designation, protected species and habitats, visual and landscape impact and the impact on residential and public amenity.

12.

Furthermore, given the proximity of the site to an existing windfarm (Braich Ddu windfarm, approximately 2.2km away from the site within the administrative boundary of Gwynedd County Council), and other windfarm developments within the wider locality (specifically the existing Wern Ddu windfarm in Gwyddelwern and the consented windfarm developments within the southern section of the Clocaenog Forest Strategic Search Area), the cumulative effects of the proposal in combination with other consented and operational wind energy schemes were also taken into consideration.

13.

However, whilst there is also a proposal for a nationally significant windfarm proposal immediately adjacent to the Syrior site (the proposed Mynydd Mynyllod windfarm), although I paid some regard to the proposal, I did not consider it appropriate to apportion significant weight to the cumulative impact of the Syrior proposal in combination with the Mynydd Mynyllod windfarm when assessing the potential environmental effects, given that an application for development consent had yet to be submitted to the Planning Inspectorate. I was therefore of the opinion that the Mynydd Mynyllod windfarm proposal was still in the early pre-planning stages could not reasonably be considered to be “in-planning”.

14.

Having taken into account the comments of CCW, the 1999 Regulations and the guidance in EIA Circular 11/99, I concluded that whilst this development may result in some environmental effects, it would be unlikely to give rise to significant effects on the environment in this instance, due to its nature size and location. I reached this view, having taken into account the likely impact of the proposal individually and in combination with the other windfarm schemes that I have mentioned previously in this statement.”

It is perfectly true that cross-examination is rarely permitted in cases of judicial review. The reasons for that reticence were explained by Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237, 282:

“It is because of the nature of the issues that normally arise upon judicial review. The facts, except where the claim that a decision was invalid on the ground that the statutory tribunal or public authority that made the decision failed to comply with the procedure prescribed by the legislation under which it was acting or failed to observe the fundamental rules of natural justice or fairness, can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v Bairstow [1956] AC 14, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament.”

Nevertheless his conclusion on the question was:

“… your Lordships may think this an appropriate occasion on which to emphasise that whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires.”

There is therefore no doubt that, in an appropriate case, the court may require a witness to attend for cross-examination. Carnwath LJ made the same point in Trim v North Dorset District Council [2010] EWCA Civ 1446, [2011] 1 WLR 1901 at [24]:

“Nor do I find in the textbooks support for the suggestion that the existence of factual disputes is a reason for an exception to the exclusivity principle. The need to resolve such disputes does not often arise, because of the nature of most judicial review proceedings. But, when it does arise, it does not create any particular conceptual or procedural problems. The permission stage gives the court full control of the proceedings. It may give any necessary directions for the attendance of witnesses and cross-examination (CPR r 8.6(2)(3)), not disapplied by CPR r 54.16: see Civil Procedure 2010, paras 54.16.1–54.16.2 and R (G) v Ealing London Borough Council (No 2) [2002] MHLR 140, para 20.”

The judge referred to the decision of Stanley Burnton J in S v Airedale NHS Trust [2002] EWHC 1780 (Admin) in which he said at [18]:

“It is a convention of our litigation that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness's testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation, although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses.”

However, that was a case in which, as Stanley Burnton J pointed out at [22] there had been no application for cross-examination. I do not consider that Stanley Burnton J’s observations, which were entirely correct in the context in which he made them, had any real bearing on the question that the judge in our case was required to decide. Indeed that same judge (by then Stanley Burnton LJ) in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin) directed cross-examination of two witnesses whose account of what had happened at a meeting which discussed the decision under attack was disputed. As he explained at [14] cross-examination should be permitted “if cross-examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly.”

Whether cross-examination is necessary will, of course, depend on what the issue is. At one end of the spectrum there may be a contested allegation that a decision was tainted by corruption. At the opposite end of the spectrum will be a case in which one of the functions of the decision maker was fact-finding. Both Mr Easton and Mr Hunter rightly stressed that whether to permit cross-examination was a discretionary decision for the judge which we should be very slow to overset. They also rightly cautioned against the possibility that cross-examination would become routine in judicial review cases. I have borne both those points in mind.

In our case the question of fact was whether Mrs Shaw’s evidence was an ex post facto justification of the decision to issue the negative screening opinion, or was an account of her actual reasoning process at the time. That was not an issue for the local planning authority to determine: it was a question for the court. The judge did not ask himself the critical question: what did justice require?

Had this been ordinary litigation, there would have been a number of areas on which one would have expected cross-examination:

The judge did not allow any of these questions to be asked. He said at [70] that cross-examination would be unusual in cases of judicial review and he did not think that it would be helpful. Instead he asked himself at [72] whether there was anything in the contemporaneous documentation which suggested that the recollection that Mrs Shaw advanced was such “that I must conclude that it is “manifestly wrong”. I do not really understand how the judge was able to say that cross-examination would not be helpful on that issue without having heard the cross-examination. That, as it seems to me, is to prejudge the question. Moreover, in framing the question that he had to answer in the way that he did, the judge transferred the burden to Mr Jedwell of disproving the accuracy of Mrs Shaw’s evidence rather than asking whether the Council had established its accuracy. In addition the exercise that the judge carried out was, in my view, highly artificial. Mr Jedwell’s complaint was that no reasons for the screening opinion had been given at the time; and the Council had confirmed that it had no contemporaneous documentary material on the subject. If, then, one were to ask whether there was anything in the records that was inconsistent with Mrs Shaw’s evidence, the answer was almost bound to be “No” because, quite simply, there was no contemporaneous material of any kind.

In my judgment this was one of those admittedly rare cases in which cross-examination was necessary in order for justice both to be done and to be seen to be done. Instead the judge conducted an examination of events and came to the conclusion, largely based on inference and extrapolation, that there was no inconsistency between Mrs Shaw’s evidence and what he deduced must have been her reasons for adopting the negative screening opinion. He was also “inclined to think”, without any specific evidence to that effect, that one of the reasons that the Council had not explained its reasoning earlier was that Mrs Shaw “had either gone on maternity leave or was about to do so”. But if it was material to know when Mrs Shaw went on maternity leave, and whether she was consulted by the Council during her leave, the obvious thing to do was to ask her. If I may borrow a famous dictum of Lord Macnaghten: with the light before him, why should the judge grope in the dark? In my judgment the judge approached the question of cross-examination in a way that was wrong in principle. Accordingly, I consider that the judge’s order cannot stand.

It was, I think, ultimately common ground that if we were to reach that conclusion the matter would have to be remitted to the Administrative Court for the issue to be determined. Mr Hunter accepted that if, following cross-examination, the judge were to conclude that Mrs Shaw’s evidence did not accurately represent her reasoning on 15 March 2012, there was a real danger that the planning permission would be quashed. However, I think it would be unwise for me to say more about the exercise of discretion at this stage, save to say that the principles are those expounded by the Supreme Court in Champion.

Mrs Graham Paul had a third ground of appeal. She argued that the judge failed to consider the meaning of “significant effect” in regulation 2 of the 1999 Regulations in the context of emerging EU jurisprudence and, in particular, the opinion of Sharpston A-G in (Case C-258/11) Sweetman v An Bord Pleanála [2014] PTSR 1092. That was a case concerned with the Habitats Directive. Sharpston A-G said that article 6(3) of that Directive imposed a very low de minimis threshold: see [48] and [49]. The question at the preliminary stage was “should we bother to check?” rather than “what will happen to the site if the project goes ahead?”: see [50]. Mrs Graham Paul’s argument was that these observations could be read across into the EIA Directive. That argument seemed to me to be based entirely on counsel’s concession in Bateman at [17]. However, in R (An Taisce) v Secretary of State for Energy and Climate Change [2014] EWCA Civ 1111, [2015] PTSR 189 Sullivan LJ (with whom Longmore and Gloster LJJ agreed) held that although the texts of the two directives were similar, their objectives were different; and that there was no necessary read across from one to the other: see [16], [19] and [20]. Lord Carnwath made the same point in Champion at [35] to [40]. Moreover at [39] Lord Carnwath rejected the submission that EU law is to be found in the opinions of Advocates General rather than in the judgments of the Court itself. In Sweetman, as Mrs Graham Paul acknowledged, the court did not endorse the Advocate General’s observations. I would therefore reject this ground of appeal.

I would therefore allow the appeal to the extent that I have indicated and remit the case to the Administrative Court.

I agree.

I also agree.