Mackman v The Secretary of State for Communities And Local Government Uttlesford District Council Redrow Homes (Eastern) Ltd

It was common ground that the screening opinion had to be read as a whole and in a common sense way. On behalf of the Appellant, Mr. Mackenzie rightly accepted that the mere fact that cumulative impact had not been expressly referred to in the screening opinion did not mean that it had not been taken into account. He submitted that although there did not have to be an express reference to cumulative impact, there had to be sufficient “linguistic clues” in the wording of the screening opinion itself to support the conclusion that on the balance of probabilities cumulative impact had been considered; and that Lang J had been wrong to rely on extraneous matters such as the likely knowledge and expertise of Mrs. Denmark as a planning officer (see paragraphs 68-73 of the judgment).

I accept the Appellant’s submission that a linguistic analysis of the screening opinion is required, but I do not accept the submission that the analysis should be conducted in a vacuum. When considering whether it is, or is not likely that regard has been paid to a particular factor which has not been expressly referred to in a screening opinion, the context in which the screening opinion was prepared is relevant. A screening opinion is one stage in the process of determining a planning application. In the present case the application for planning permission was made on 31^st May 2012. Mrs. Denmark (who is described as the Second Respondent’s Development Management Team Leader in email correspondence with the Planning Inspectorate) was the case officer who, having carried out the screening opinion dated 25^th June 2012, then prepared a detailed report on the application for the meeting of the Second Respondent’s Development Control Committee on 22^nd August 2012. In that report she considered a number of the policies in the Uttlesford District Local Plan 2005, and specifically referred to the proposed development of 100 houses on land to the South of Ongar Road, which had been granted permission on appeal on 20^th June 2012.

I endorse Lang J’s conclusions in paragraphs 72 and 73 of her judgment. It is most improbable that when Mrs. Denmark carried out the screening opinion on 25^th June 2012 she was unaware of the very recent appeal decision which had granted planning permission for 100 houses on land to the South of Ongar Road, or that she was not familiar with the contents of the Local Plan allocations for a civic amenity site on land off Chelmsford Road, and a business park at Smith’s Farm, and with the County Council’s application for a waste transfer station on the former.

Did Mrs. Denmark ignore these other developments because she failed to realise that the issue of cumulative impact had to be addressed? Mr. Mackenzie submitted that on a common-sense reading of her description of the “Characteristics of the Development” she had simply considered the visual impact of the proposed development, and had not considered cumulative impact. I do not accept that submission. When drafting the screening opinion Mrs. Denmark not only referred to Circular 02/99, she carefully followed the guidance in the circular, taking a step by step approach to deciding whether an EIA was required. Lang J noted in paragraph 69 of her judgment that the guidance in the Circular included the advice in paragraph 46 that:

“in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or proposed development.”

Mrs. Denmark also referred to Schedule 3 to the Regulations, and dealt with the three headings in turn. It is true that, unlike the third heading – characteristics of the potential impact – under which she expressly referred to the five factors to which she had to have particular regard, she did not list factors (a) – (f) when dealing with the first heading – Characteristics of development. It does not follow that she failed to have regard to them. Indeed, it is highly unlikely that, having deliberately adopted the structure of Schedule 3 for the purpose of her analysis, she would then have failed to have regard to those factors to which Schedule 3 told her to have particular regard.

With the exception of factor (a) – the size of the development – to which the screening opinion does refer (“a significant element of built form”) there is no express reference to any of the other factors (b) – (f). When we asked Mr. Mackenzie whether it followed from this “linguistic clue” that factors (c) – (f), in addition to factor (b) – the cumulation with other development – had not been taken into account he replied that there had been no need to refer to those other factors because, unlike cumulative impact, they were not relevant for the purposes of this application.

On behalf of the First Respondent, Mr. Kimblin referred to the lengthy list of reports which had accompanied the planning application and which Mrs. Denmark said she had considered for the purpose of making her screening opinion (paragraph 7 above). The screening opinion does not refer to most of the matters that were dealt with in those reports. This does not mean that, eg ecology, flood risk, drainage, noise etc. were ignored by Mrs. Denmark. On a fair reading of the screening opinion as a whole it is clear that, having considered all of the matters referred to in the reports, and all of the factors listed under “Characteristics of Development” in Schedule 3, including cumulative impact, Mrs. Denmark identified and discussed the only factor – the visual impact of a significant element of built form within the rural area – which, as a matter of planning judgment, she considered might potentially have justified a conclusion that this development was likely to have significant effects on the environment. Having considered this factor, she concluded that significant environmental effects were not likely and an EIA was not required. There is no challenge to the rationality of that conclusion, and in the light of the Inspector’s subsequent decision it is not in the least surprising.

As a matter of first impression, the obligation imposed by regulation 4(7)(a) of the 2011 Regulations to give “clearly and precisely the full reasons” for a screening opinion is a demanding one. However, it is important to bear in mind the function of a screening opinion under the 2011 Regulations when applying the requirements of regulation 4(7)(a). Mr. Mackenzie rightly accepted that in terms of the amount of detail required in the reasons given for a screening opinion, it is not to be equated with a decision letter on an appeal.

We were referred to the judgment of Moore-Bick LJ in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 in which he said that a screening opinion:

“20 …. [I]s not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term ‘screening opinion’.

21.

Having said that, 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.”

The majority of the Court of Appeal in Bateman concluded that the reasons given for the negative screening opinion in that case were inadequate. Mr. Mackenzie submitted that the reasons given in Bateman were less inadequate than the reasons given in the screening opinion as the present case. As in Bateman, there was no clear statement of Mrs. Denmark’s reasons for her conclusion that the proposed development was not likely to have significant environmental effects. The “reasons” amounted to no more than a bare conclusion.

While there is some force in this submission, the circumstances of this case are very different from those in Bateman. In Bateman the screening opinion had concluded (unsurprisingly) that the main impacts of a proposal to expand a grain storage facility with a capacity of 90,000 tons in 12 silos to a capacity of 300,000 tons in 60 additional silos each about 18 metres high and 23 metres in diameter, were likely to be “increase in traffic movements, landscape impact and noise disturbance to local residents” (see paragraph 6 of the judgment of Moore-Bick LJ). In those circumstances, an explanation as to why those impacts on the environment were not likely to be significant was called for, and was not contained in the screening opinion.

In paragraph 78 of her judgment Lang J correctly said that the level of detail in a screening opinion would depend upon the complexity of the issues to be considered in the particular case, so that the test was whether the reasons were adequate for this particular application. She accepted that the reasons were brief, but concluded that they were not inadequate “in the circumstances of this particular case which was not complex or borderline.”

The adequacy of the reasons given by Mrs. Denmark for her conclusion that the proposed development was not likely to have significant environmental effects must be considered in the context of the answer to the first ground of appeal: that on a fair reading of the screening opinion Mrs Denmark did not fail to have regard to the issue of cumulative impact, or any of the other factors identified in Schedule 3. She did have regard to them, but having considered them she concluded that only one matter – the visual impact of a significant element of built form within a rural area – might have been capable of justifying a conclusion that there would be a significant environmental impact, but concluded that it did not (paragraph 15 above). Unlike Bateman, there is nothing in this screening opinion which cries out for further explanation. A fair summary of this screening opinion is that it tells the reader that there is nothing about the characteristics of this particular development, its location, or the characteristics of its potential impact, which would justify a conclusion that it was likely to give rise to significant environmental effects. On the particular facts of this case, the reasoning, albeit brief, is not inadequate, bearing in mind the function of the screening opinion as described in Bateman.

In paragraph 79 of her judgment Lang J explained why she would have refused relief as a matter of discretion even if she had concluded that the reasons in the screening opinion were not adequate.

“Moreover, even if the Claimant was successful in establishing that the reasons were inadequate, he would face insurmountable difficulties in establishing that he was ‘substantially prejudiced’ under section 288(5)(b) TCPA 1990 and that the court should exercise its discretion to quash the grant of planning permission. This site has been screened on numerous occasions, and each time the result has been negative. The wording of the opinion has been revised to make it clear beyond any doubt that the cumulative impact of other development has been considered. No one has sought to argue that a full EIA is required for this development at any stage. There has been full consideration of the environmental effects of this proposal by an Inspector at a hearing, and he has confirmed that he specifically considered the cumulative impact of the two housing developments in the light of Mr. Buxton’s letter. By reg. 12(2) he was bound to seek a screening direction if it appeared to him that the development might be EIA development, and he did not do so.”

I accept Mr. Mackenzie’s submission that if the screening opinion was unlawful because it was inadequately reasoned, then the challenge to the Inspector’s decision would fall under sub-paragraph (i) in section 288(1)(b) – that the decision was not within the powers of the 1990 Act – so that the Appellant would not have to demonstrate that his interests had been substantially prejudiced by the failure to give reasons: see section 288(5)(b). However, all the matters referred to by the judge are relevant for the purpose of the discretion to quash under section 288(5)(b). Those matters may be summarised as follows:

On the 6^th April 2015 Schedule 2 to the 2011 Regulations was amended by the Town and Country Planning (Environmental Impact Assessment) Regulations 2015 (“the 2015 Regulations”). The amendment altered the thresholds for Urban development projects in paragraph 10(b) of Schedule 2. The appeal proposal is for 73 dwellings on a 3.8 ha site. The thresholds for residential development are now more than 150 dwellings or an overall area in excess of 5 ha. It was common ground that if the Inspector’s decision was quashed and the Third Respondent’s section 78 appeal was remitted to the First Respondent for redetermination the First Respondent would be bound to conclude that the proposed development was not Schedule 2 development.

The Impact Assessment in respect of the 2015 Regulations carried out by the Department for Communities and Local Government explains the rationale for the amendments to the thresholds in Schedule 2, and the underlying policy objective, as follows:

“Rationale for intervention

The Government is concerned that the unnecessarily low screening thresholds for urban development are adding unnecessary burdens on developers and local planning authorities and slowing down the delivery of homes and other urban development while delivering no additional environmental benefits. The thresholds are set out in Schedule 2 to the 2011 Regulations, which will need to be amended to bring forward the proposed changes.

Policy objective

The objective is to speed up the planning system and deliver more homes and other urban development, and at the same time reduce the cost burdens of unnecessarily screening projects which because of their nature, scale and location are not likely to give rise to significant environmental effects.”

In view of the amendment to Schedule 2 we asked Mr. Mackenzie what would be the purpose of quashing the Inspector’s decision. He replied that there was a real possibility that the First Respondent would then exercise his discretion under regulation 4(9) of the 2011 Regulations:

“The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of “Schedule 2 development” is satisfied in relation to that development.”

The submission is ingenious, but wholly unrealistic. The parties were not aware of any case in which this discretion had been exercised by the Secretary of State. Paragraph 77 of Circular 02/99 makes it clear that the power will only be exercised exceptionally. Mr. Mackenzie was not able to identify anything that might reasonably be described as exceptional about this case. He placed great weight on the three developments in the vicinity referred to in paragraph 8 above, but the only change since the hearing before the Inspector in December 2012, when cumulative impact with those three developments was not even raised as an issue, has been the recent grant of planning permission for the mixed use scheme at Smith’s Farm for which proposals had been made in July 2012 as part of the consultation on the local plan.

In view of:

I would dismiss this appeal.

I agree.

I also agree.