Kenyon v The Secretary of State for Housing Communities & Local Government

This appeal concerns a development site on the outskirts of Hemsworth, near Pontefract in West Yorkshire (“Site A”). On 16 December 2016, the first respondent directed that the proposed development of Site A was not EIA development within the meaning of regulation 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”) such that an environmental statement to assess the environmental effects of the development was not required. The appellant’s application for judicial review of that screening direction was refused by Mrs Justice Lang DBE (“the judge”) on 18 December 2018 ([2018] EWHC 3485 (Admin)). The appellant appeals against that decision with leave of Lindblom LJ.

The arguments on appeal ranged far and wide and included, somewhat surprisingly, a close review of the evidence before the first respondent and, subsequently, the judge. It was difficult to discern any substantial points of principle from any of this: speaking for myself, I wondered if the most important point to arise from the appeal hearing was the need to ensure that appeals in cases of this kind do not become another weary trot around a well-worn course.

Unusually, I start with the law (Section 2 below) because that informs the factual background and the relevant decisions (Sections 3 and 4) as well as the judge’s judgment (Section 5). Having set out the issues raised by the appellant in Section 6, I then go on to deal with each Ground of Appeal in Sections 7 - 11. There is a short summary of my conclusions at Section 12.

At the relevant time, the 2011 Regulations prescribed the procedures to be followed when planning permission was sought for what might be “EIA Development”. That is defined in Regulation 2(1) as being either “Schedule 1 development” or “Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. It is common ground that this was not Schedule 1 development. It is also common ground that this was Schedule 2 development because, although it was for 150 dwellings (and Schedule 2 only applies to developments in excess of that number), Site A was greater than 5 hectares. Despite the fact that the part of Site A which was being developed was less than 5 hectares (because of the retention of a belt of trees to the south), Schedule 2 still applied. These factors (namely the fact that the number of dwellings was just below the applicable minimum and the size of Site A was only just above the applicable minimum because of the land that was not being developed) explain the repeated references in the screening opinion and screening direction under review to the comparatively small scale of this proposed residential development compared to those which more usually arise under Schedule 2. In that regard, I also note that Schedule 2 is primarily concerned with the extraction, energy and chemical industries, and infrastructure projects such as shopping centres and car parks.

Regulation 3 provides a prohibition on granting planning permission without consideration of environmental information and Regulation 3(1)(a) provides that Regulation 3 applies “to every application for planning permission for EIA development received by” the planning authority. Regulation 3(4) provides:

Regulation 4 stipulates when development is to be treated as “EIA development”:

the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or

the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.

Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.

Where a local planning authority adopts a screening opinion under regulation 5(5), or the Secretary of State makes a screening direction under paragraph (3)—

that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and

the authority or the Secretary of State, as the case may be, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (a) to the person who proposes to carry out, or who has carried out, the development in question.

Regulation 5 permits an applicant for planning permission to request the local planning authority to adopt a screening opinion. Regulation 5(7) permits an applicant to ask the first respondent to make a screening direction if the local planning authority does not adopt a screening opinion within the specified timescales, or if they determine that the proposed development is “EIA Development”. The procedure to be followed is set out in Regulation 6.

Schedule 3 to the 2011 Regulations identifies three selection criteria which must be considered for screening a Schedule 2 development:

Characteristics of development.

Location of development, and

Characteristics of the potential impact.

As set out in Regulation 2, the test to be applied in considering whether an Environmental Statement is required is whether the development is likely to have significant effects on the environment. In R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869 at paragraph 43, Pill LJ said:

The questions of whether there is sufficient information to issue a screening opinion/decision, and whether a proposed development was likely to have significant effects on the environment, are matters of judgment for the decision-maker: see R (on the application of Birchall Gardens LLP) v Hertfordshire CC [2106] EWHC 2794 (Admin) paragraphs 66 and 67, and Evans v Secretary of State [2013] EWCA Civ 115. In the latter case, Beatson LJ said:

Reference was also made in argument to R (Champion) v North Norfolk District Council and Another [2015] UKSC 52 where, at paragraph 51, Lord Carnwath said that “application of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA”. That observation was in the context of the interaction between the likely effects of the proposed development, on the one hand, and mitigating measures at the screening stage, on the other.

A decision as to whether a proposed development is or is not likely to have significant effects on the environment can only be struck down on Wednesbury grounds: see paragraph 31 of the judgment of Pill LJ in Loader.

The limited nature and scope of a screening opinion was emphasised by Moore-Bick LJ in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157. He said at paragraph 20:

Bateman was a case in which the Court of Appeal concluded (by a majority) that the reasons given for the negative screening opinion (which amounted to 1½ sentences) were inadequate. However, as has been pointed out in subsequent cases, this was unsurprising on the facts, given that there was no explanation for why the expansion of a grain storage facility from 90,000 tonnes to 300,000 tonnes, and from 12 to 60 large silos, was not likely to have a significant effect on the environment.

As to the practical limits of any screening decision, Lindblom J (as he then was) said in Hockley v Essex County Council & Anr [2013] EWHC 4051 (Admin):

Other authorities have demonstrated that a screening direction is a preliminary assessment rather than an examination paper expected to contain a record of each and every issue and each and every conclusion: see Mackman v SSCLG [2013] EWHC 3396, at paragraph 65 – 72. In the same case in the Court of Appeal ([2015] EWCA Civ 716, Sullivan LJ said:

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."

Site A was used as a brickworks quarry for the first seventy years of the last century. Subsequently, there was some infilling with waste, but there were no records of the materials used or any possible contamination risks. At one stage, the previous industrial use and the infilling gave rise to potential issues relating to contaminated land, and this was part of the appellant’s original application for judicial review. However, that aspect of the challenge had fallen away by the time of the hearing before the judge.

Between 1970 and 2007, Site A was a recreation ground and there was a small sports stadium there, known as the Hemsworth Sports Complex. In January 2008, the fourth respondent applied to the second respondent council for outline planning permission for 150 homes. That planning permission was granted on 24 November 2010 but quashed by consent on 14 February 2012.

On 5 September 2013, the second respondent again resolved to grant permission in respect of Site A and such permission was issued on 31 March 2016. That permission too was subsequently quashed by consent on 1 July 2016.

On 5 September 2016, the appellant requested an EIA screening direction from the first respondent, setting out why he said that an EIA was necessary. On 21 November 2016, the second respondent provided a screening opinion which stated that the proposal was not EIA Development and that therefore no environmental statement assessing the environmental effects of the development was required. That screening opinion was subsequently referred to in the first respondent’s decision under review, so it is appropriate to set it out in some detail:

Taking account of the nature and scale of the development, it is considered that its impacts would not be likely to give rise to significant environmental effects.

It is considered that the locality is not sensitive or vulnerable to the extent that the proposed development would be likely to have significant environmental effects; and

The development is considered to not be one with particular complex and hazardous effects.

In a letter dated 16 December 2016, the first respondent informed the appellant of his decision that, although he considered that the proposed development fell within Schedule 2 of the 2011 Regulations, “having taken into account the selection criteria in Schedule 3 to the 2011 Regulations, [the first respondent] does not consider that the proposal is likely to have significant effects on the environment, see the attached written statement which gives the reasons for direction as required by Regulation 4(7)…” (“the screening direction”).

The written statement attached to the screening direction took its structure and headings directly from Schedule 3 of the 2011 Regulations (paragraph 8 above). It referred expressly to the second respondent’s screening opinion set out in paragraph 20 above. It was in the following terms:

Are there existing, land uses on or around the location e.g. homes, gardens, other private property, industry, commerce, recreation, public open space (including parks), community facilities, agriculture, forestry, tourism, mining or quarrying, hospitals, schools, places of worship, community facilities which could be affected by the project?

Are there any areas on or around the location which are densely populated or built-up, which could be affected by the project?

Are there any transport routes on or around the location which are susceptible to congestion which could be affected by the project?

On receipt of the screening direction and screening analysis, the appellant commenced judicial review proceedings on 24 January 2017. Three grounds of challenge to the direction were identified:

Ground 1: A failure to consider the cumulative effects of the proposal;

Ground 2: Unlawful reliance upon conditions to remedy adverse

Ground 3: Failure to consider other relevant environmental consequences.

On 15 August 2018, Sir Ross Cranston, sitting as a High Court Judge, granted permission for judicial review on Ground 1 only. Moreover, he limited that permission to the issue of air quality. It is important to stress that both Ground 1 as drafted, and Sir Ross’s detailed observations upon it, were based on the appellant’s argument about the cumulative effects of the proposed development of this and five other sites in the same area (known as Sites B, C, D, E and F) on air quality generally.

The appellant did not challenge the decision limiting Ground 1 to the cumulative effect on air quality, but made a renewed application for permission on Grounds 2 and 3. At the hearing before the judge, the appellant abandoned Ground 3. The judge dealt with Ground 2 on a rolled-up basis but, having considered it, she refused permission

Both before the judge, and again on appeal, there were references to other documents which were not available to (and therefore did not inform) the first respondent’s screening direction of 16 December 2016. These include the Air Quality Assessment produced by REC on behalf of the fourth respondent which (although dated November 2016) was not submitted to the second respondent until January 2017; and the second respondent’s 2018 and 2019 Air Quality Annual Status Reports (which dealt with, amongst other things, the Hemsworth AQMA). The 2019 report was not created until June 2019, and so had not been before the judge either.

In judicial review proceedings it is generally inappropriate for parties to seek to rely on documents (and to advance arguments based on those documents) which were not available to the decision-maker. Taken at its highest, such an approach undermines the entire process of judicial review. It runs the risk that the court will be asked to conduct a kind of rolling review, in which nothing is ever finalised or settled, and it does not matter what information was available at the time the decision was taken. This serves only to encourage the all-too-prevalent attitude that, in judicial review applications, it is always possible to ‘have another go’. The parties’ references to the Reports noted in the preceding paragraph were designed to do exactly that, with each side seeking to rely on particular paragraphs in support of their submissions about the rationality (or otherwise) of a decision made without sight of any of them.

The only exception to this general principle arises in debates about the appropriate remedy, should the challenge prove to be well-founded. This most often occurs when a respondent argues that, even if there was a technicality which rendered the original decision unlawful, it should not be quashed or set aside because subsequent events have shown it to be the right decision on the merits. It was on that basis, for example, that the first respondent originally sought to rely on the REC report. In my view, this process needs to be tightly controlled; otherwise the sort of risks identified in the previous paragraph will eventuate (because the parties so often try and rely on such material for any purpose, even if strictly the evidence goes to a fall-back argument only). Moreover, for the reasons explained below, I consider that it is unnecessary to consider any fall-back argument in this case.

For these reasons, therefore, I have not had any regard to the documents that were not in existence or available at the time of the screening direction of 16 December 2016.

Having set out the legal framework at [7] – [14] and the documents containing and relevant to the screening direction at [15] – [18], the judge then identified the nature of the complaint in relation to air quality at [19] – [23]. She set out the law at [27] – [32].

Her overall conclusion was at [34]. She said:

Having set out various extracts from the documentation, the judge said at [41]:

Thereafter, dealing with the limits of a screening opinion and direction, the judge said:

It appears that, although the principal ground that was argued before the judge concerned the cumulative effect of this and the other five sites (Sites B-F), the submissions ranged rather more widely during the hearing before her. In particular, the appellant’s skeleton argument below advanced a new case on the basis that, leaving aside the other five sites, the effect of increased traffic from Site A alone on the nearby AQMA meant that it was likely that the development would have a significant effect on the environment. It appears that no point was taken before the judge that the appellant did not have permission to raise that challenge. This argument was not about cumulative effect at all: it was solely about the proximity of Site A to the AQMA.

This ‘challenge-creep’ continued on appeal. The appellant’s Grounds of Appeal raise no less than five separate arguments, only one of which (Ground 3) can be linked back to the sole ground for which permission was originally granted. In this court, the appellant contended that the judge erred in the following respects:

Ground 1: There was an insufficient evidential basis for her finding that the first respondent could reach the conclusion that the proposed development would have “no likely significant effects on the environment” such that an EIA was not required;

Ground 2: The judge failed to acknowledge that a precautionary approach to EIA decision-making was required in circumstances where it was accepted that the proposal would lead to an increase in traffic and air pollution within the nearby AQMA;

Ground 3: The judge erred in concluding that the first respondent had considered cumulative effects, in circumstances where “he had failed to provide any material evidence”;

Ground 4: The judge failed to have regard to the fact that the first respondent relied upon the proposal being in an urban area to reach a conclusion that increasing air pollution in that locality, including in an AQMA, would not potentially have a “significant effect on the environment” and therefore require an EIA to be undertaken;

Ground 5: The judge erred in regarding the Site as an existing development site when, as a matter of local and national policy, and as a matter of fact for the purposes of air quality, it was regarded as a greenfield site.

Grounds 1 and 3 raise evidential matters, to the effect that there was no or no sufficient evidence before the first respondent to enable him to come to the conclusion that an EIA was not required because the proposed development of Site A was not likely to have a significant effect on the environment. Those two Grounds therefore raise directly the question of what approach this court should take to the judge’s judgment, given that these evidential challenges had been raised before and rejected by the judge. Although Mr Willers QC submitted that he was not asking this court to “start from scratch” in relation to these matters, that disavowal was negated by the fact that, throughout his submissions, he made copious references to the screening opinion and decision, but never once referred to the judge’s judgment, much less indicate where or how it was that the judge erred in law.

The best that Mr Willers could do, in answer to a question from the court, was to say that, because her conclusion was wrong, the judge must have had regard to evidence that was irrelevant, alternatively failed to have regard to evidence that was relevant. But he did not identify the evidence wrongly missed or wrongly relied on. Beyond expressly disavowing the notion that the judge’s conclusions were perverse, he did not further address the judge’s careful evaluative judgment, as summarised at paragraphs 31 - 34 above.

In my view, this relaxed attitude to the judge’s rejection of the judicial review challenge, and her reasons for that decision, was unsatisfactory. In this case an experienced planning judge has considered the application for judicial review, evaluated the relevant material, and ruled that there was sufficient evidence for the decision made. On an appeal, it is incumbent upon an appellant to demonstrate that the judge erred in law in reaching such a conclusion. That requires considerably more than an attempt to reargue the case from the documents all over again. In my view, that point alone is enough to justify dismissing Grounds 1 and 3, with Ground 1 suffering from the additional difficulty that it was not a judicial review challenge for which permission had originally been sought or granted.

As to the other Grounds, Ground 2 was not argued before the judge, which might again be thought to justify its immediate rejection. Ground 4 was the subject of the judge’s conclusion at [46], that the submission on which it relied was based on a misreading of the screening direction. It would again appear that, in order to challenge that conclusion, the appellant would need to show that this view of the direction was not open to the judge or somehow amounted to an error of law. I am not at all sure

Since I have formed a clear view on the merits of these five Grounds, I propose to address them in detail, notwithstanding the myriad difficulties of principle to which I have referred in the preceding paragraphs. However, in another case, those observations might be thought to be sufficient to dismiss this appeal outright.

I deal with Grounds 1 and 3 first because it seems to me that, rightly or wrongly, they lie at the heart of the appeal. I then go on to deal more briefly with the other Grounds.

An appellant seeking to argue that the decision-maker (and, by extension, the judge) reached a conclusion for which there was no evidential basis invariably faces an uphill task. Such a task is made even more difficult in a situation like the present case, given that the screening direction is a preliminary, broad-based assessment of environmental impacts, undertaken by those with relevant training and planning expertise.

The judge concluded that there was a proper evidential basis for the screening decision. Was she wrong in law so to do? In my view, the answer to that is in the negative: the judge was quite entitled to reach that conclusion, and nothing has been identified on appeal to demonstrate that she was even arguably in error.

As a starting point, I note that in her judgment at [34], the judge described the appellant’s approach on Ground 1 as “unduly forensic and nit-picking”. Despite the habitual skill and charm of Mr Willers’ advocacy, I consider that the same description could be applied to his submissions on appeal. He spent a good deal of time identifying particular paragraphs in particular documents and seeking to point out the potential gaps and omissions within them. Some of this came down to an alleged failure to cross-reference properly. In my judgment, that is not a proper approach to a judicial review application of this sort, let alone an appeal. Furthermore, I consider that the sections of the relevant documents which I have set out in paragraphs 20 – 23 above make plain that, contrary to the appellant’s submissions, there was an evidential basis for concluding that there was no likely significant effect on the environment.

Mr Willers’ principal submission on Ground 1 came to this. Site A was close to the AQMA. It was inevitable that, if Site A was developed, there would be more traffic entering the AQMA. In those circumstances, the proximity to the AQMA was a particular characteristic of Site A which made it irrational to conclude that the development was not likely to have a significant effect on the environment, without at least obtaining further information. As he put it at one stage of his oral submissions, “it is all about the AQMA”.

I cannot accept that submission for a variety of reasons. Many of those reasons are articulated in the judgment below and set out in the passages I have cited in paragraphs 31 - 34 above.

The first point to note is that this was, on any view, a routine development of residential houses. There was nothing unusual about the proposed development. Indeed, as I have said, the starting point must be that, because this was not a development for more than 150 dwellings, and the actual amount of land being developed was 4.6 hectares, the proposed development of Site A was only just big enough to be within Schedule 2 in any event. I consider that this was an important element of the screening direction, which was repeatedly encapsulated by both the first and second respondents in the shorthand phrase “the limited site area and scale of development”.

Secondly, I agree with Ms Patry that the screening direction adopted the approach required by the 2011 Regulations. It addressed each of the headings required by Schedule 3. It took into account all relevant matters. There was nothing missing. The first respondent explained, step by step, how he had reached his conclusion.

Thirdly, the first and second respondents were well aware of the AQMA. Although Site A was not within the AQMA, the screening opinion and direction both contain references to the AQMA centred on Hemsworth. It cannot be said that the AQMA somehow slipped the minds of the first and second respondents when addressing the issue of likely environmental effects.

Fourthly, the first and second respondents were also aware that the increased traffic from the completed development of Site A would have an effect on the AQMA. This can be seen in a number of places, but perhaps most obviously in paragraph 3.23 of the screening opinion, and the consideration of Question 8 in the screening analysis, where there are express references to the development leading to an increase in traffic at the junction of Cross Hill in the centre of Hemsworth, where the AQMA was located. But there is no evidence that this increased traffic would be likely to have a significant effect on the environment: on the contrary, paragraph 3.20 of the screening opinion states that it would not.

Given all of those factors, it is idle to suggest that in some way the first and second respondents, as experienced and knowledgeable planning officials, were not well aware of the likely impact of the traffic from Site A (following its development) on the AQMA. In the exercise of their planning judgment, they concluded that notwithstanding this information, this was not likely to have a significant effect on the environment. In my view, that was a matter for their planning judgment and therefore a matter for them. Contrary to Mr Willers’ submission, this was not a case that was remotely close to the extreme facts in Bateman: see paragraph 14 above.

Mr Willers’ related submission was to ask rhetorically: if the first respondent had decided that there would be a likely effect, but that it was not significant, where was the evidence on which he relied in arriving at that conclusion? This shaded into a suggestion that the reasons for the screening direction were inadequate, because in explaining why any effect was not likely to be significant, the direction (as he put it) “does not go far enough.”

I disagree. The authorities to which I have referred make clear that the first and second respondents were not required to set out in detail all the information and statistics, of which they would have been well aware, and which might be relevant to the question of air pollution. I am thinking in particular of the published data as to trip frequency, standard emissions and exceedances, and the like. The first and second respondents must be taken to be familiar with all such information. Armed with that knowledge, they concluded that, in this case, the increase in traffic was not likely to have a significant effect on the environment. This was because of the comparatively modest scale of the development. That was a matter for them, and not something that had to be justified by reference to lengthy written reasons in respect of concepts, formulae and other matters which were very familiar to them.

Having regard to Mr Willers’ rhetorical question, it is not unreasonable to turn it back on the appellant and ask what the evidence was that might suggest that this comparatively modest residential development was likely to have a significant effect on the environment. Mr Willers appeared to accept that there was no such evidence, but suggested that there did not need to be any. He submitted that there was an automatic assumption to that effect, given the proximity of Site A to the AQMA. Indeed, he went so far as to say that, in respect of any development of over 5 hectares close to an AQMA, it was irrational to conclude that it was not likely to have a significant effect.

In my view, that simply does not follow. The effect on the environment, and whether it is likely to be significant or not, must depend on the facts of each case, and in particular the nature, scale and size of the development, its proximity to the AQMA and the like. It is a sliding scale, or spectrum. It cannot be right that, as a matter of principle, every development close to an AQMA should automatically be regarded as likely to have a significant effect on the environment, without any specific evidence to point to that conclusion. In my judgment, proximity to an AQMA is not some sort of trump card which will always give rise to the need for an EIA.

On this issue, the judge’s conclusion was in these terms: “47. It was legitimate for the authors of the screening analysis and the written statement to address the issues by reference to the lists of categories and factors in schedule 3 to the 2011 Regulations. On a fair reading, all aspects of air quality and cumulative impact were considered and taken into account in reaching the overall conclusion that there were no likely significant effects on the environment arising from the proposed development, and so an EIA was not required.”

Accordingly, I would reject Ground 1 of the appeal. There was a sufficient evidential basis for the conclusion that - notwithstanding the proximity of the AQMA - the proposed development was not likely to have a significant effect on the environment and there was no error of law on the part of the judge in reaching that same conclusion.

The thrust of this complaint concerns the five other potential development sites in the area. In my view, these were properly taken into account. Thus:

The second respondent’s screening opinion expressly considered all the consented developments, and sites allocated for housing development, in the local development framework, at paragraphs 3.6 – 3.10 (see paragraph 20 above).

Site B is directly adjacent to this site. Planning permission for 25 dwellings was granted as long ago as September 2009. That development had been completed by the time the screening direction was issued. Site B was considered at paragraph 3.6 of the screening opinion.

Site C is a small site adjacent to the southern boundary of the site. It was allocated for residential development in the adopted local development framework and planning permission was granted for 24 homes on 16 February 2017. Site C was considered at paragraph 3.7 of the screening opinion.

Site D is to the north of this site. Planning permission was granted in October 2009. The development of 14 houses was complete by the date of the screening direction. Site D was considered at paragraph 3.7 of the screening opinion.

Site E is a site some distance to the north of this site, allocated for residential development in the local development framework. Site E was addressed at paragraph 3.8 of the screening opinion.

Site F is a site some distance to the west of this site, allocated for residential development in the local development framework. Site F was addressed at paragraph 3.8 of the screening opinion.

At paragraph 3.10 of the screening opinion, taking all these five sites into account, along with Site A, the second respondent concluded that “there would not be likely to be any significant cumulative environmental impacts”.

In addition, the consented housing developments on sites B and D and the application for housing in respect of site C, were also considered by the first respondent in the screening analysis under the heading Q21 ‘cumulative impact’ (paragraph 23 above). The same conclusion resulted.

Accordingly, I consider that it is beyond argument that the first and second respondents reached their conclusions, that there were no likely significant effects arising from the proposed development of Site A, taking into account all relevant considerations, including the nature, location, and scale of the proposed development and the other developments in the area (both planned and actual), such that an EIA was not required. There was a plain evidential basis for that conclusion. It is equally clear that, in accordance with the approach in Loader, that was a conclusion which was open to the first and second respondents as a matter of planning judgment.

Accordingly, I would reject Ground 3 of the appeal.

The source of the appellant’s argument can be found in the EU Directive (2011/92/EU of 13 December 2011) concerned with the assessment of the effects of public and private projects on the environment. At Recital (2), it states:

The appellant’s submission was that, because there was what he describes as “inevitable uncertainty” about the air pollution created by the proposed development, the decision-maker, and the judge, failed to have proper regard to the precautionary principle.

I consider that this argument to be misconceived. In addition, as I have said, it is an unfair criticism of the judge, since I can find no evidence that this point was ever raised below, and certainly not in the terms in which it was advanced before us.

The precautionary principle will only apply if there is “a reasonable doubt in the mind of the primary decision-maker” (see Beatson LJ in Evans). It is contrary to the principle outlined there to argue that, merely because somebody else has taken a different view to that of the primary decision-maker, it cannot be said that there was no reasonable doubt.

In the present case, neither the first nor the second respondent had any doubt that the proposed development was not likely to lead to significant effects. In circumstances where there was no doubt in the mind of the relevant decision-maker, there is no room for the precautionary principle to operate. The argument therefore fails at the first hurdle.

In discussions between my Lord, Lord Justice Lewison, and Mr Willers, a point arose as to the difference between a situation where, as here, the first respondent had no doubt that there was no likely significant effect, and the situation where it might be argued that he should have had such a doubt. That latter proposition was at the forefront of Mr Willers’ submission: he candidly accepted that “I cannot say there was material doubt. But I can say that there ought to have been a material doubt.”

It seems to me that the answer to that issue is this. A decision-maker in this situation has three options: they can decide that an EIA is necessary; they can decide that an EIA is not necessary; and finally, they may not know whether an EIA is necessary or not. It is in that third situation that the precautionary principle applies. It is difficult to see how it could apply to the second option, save perhaps for the rare case where, although the decision-maker had no doubt, the absence of any such doubt was irrational on Wednesbury principles. But that would just bring the debate back to the lawfulness or otherwise of the underlying decision and, for the reasons I have given, I do not doubt the lawfulness of the screening decision in this case.

Accordingly, I would reject Ground 2 of the appeal.

I deal with this before Ground 4 because, logically, it raises a prior issue.

Underlying Ground 5 is the complaint that the first respondent (and the judge) erred in law by characterising the proposed development of Site A as a proposal relating to “an existing developed site” whereas, in truth, it should have been regarded as a greenfield site. I do not consider that to be correct, and to be fair to Mr Willers, although he did not formally abandon it, he did not press it either.

It seems to me to be contrary to common sense to suggest that Site A should somehow be designated or treated in the same way as a greenfield site. It was formerly a brickworks quarry which was subsequently used for landfill with no restoration procedures. At one point the recreation ground had a small athletics track and associated buildings on it. Site A therefore fell within the NPPF 2012 definition of previously developed land (“PDL”) and, since none of the exclusions from the definition of PDL could apply to Site A, it was rightly considered to be an existing developed site.

Moreover, I consider this to be the obvious conclusion, in the light of the other points raised in the appellant’s original judicial review application. As noted in paragraph 24 above, the challenge originally raised questions about the contaminated nature of the land. That arose directly out of the landfilling operations and the previous use(s) of Site A. To suggest that Site A is somehow both contaminated and a greenfield site is a logical impossibility.

Finally, I do not accept that the description of Site A as “an existing developed site” had any impact on the first respondent’s screening direction or the judge’s judgment. The screening direction would have been the same, whether Site A was so designated or not. Site A was still the same distance away from the AQMA. It was still not in the open countryside away from all forms of traffic. Accordingly, its designation was irrelevant to the screening direction of 16 December 2016, an argument from which Mr Willers did not demur. I would therefore reject Ground 5.

That characterisation of Site A then informs the approach to Ground 4, which is the relevance or otherwise of the fact that Site A, an existing developed site, was in an urban area. The appellant argues that the screening direction was unlawful because the first respondent treated the fact that Site A was in an urban area as requiring a different, lower test to be applied in respect of the likely effect on the environment.

The two separate passages in the screening direction which are relied on by the appellant in support of Ground 5 are as follows:

The appellant’s broad suggestion (based on these two sentences, taken in isolation) is that the first respondent was prepared to allow pollution in and around Site A because it was located in an urban area, which he would not have countenanced had Site A been within a rural area. The argument, encapsulated at paragraph 51 of the appellant’s skeleton argument, was that, because the accepted increase in air pollution caused by the proposed development will occur in an urban area, there should be greater concern about the effects of that increase, not less.

The judge squarely addressed and rejected that submission at [46]: see paragraph 34 above. She said that, ultimately, the argument was based on a misreading of the first respondent’s screening direction.

I respectfully agree with that conclusion. Nowhere in the screening direction, or in the other documents which I have set out above, is there any sustainable suggestion that, in some way, the potential air pollution from the completed development of Site A was treated in a different way because it would occur in an urban environment, as opposed to a rural location. What the screening direction was doing was making plain that the pre-existing urban environment was part of the context in which the development was going to take place, and was therefore a relevant factor to be taken into account when considering whether the effect was likely to be significant or not. That was self-evidently the right approach. To put the point another way: Site A would not be generating traffic for the first time, and there were existing and future urban developments around it which also continued to generate traffic. It was in that context that the likelihood of significant environmental effects was considered and rejected.

In the context of Ground 5, I had wondered whether there was a slightly different point available to the appellant, to the effect that, because of the reference to the likelihood of effects “above that which any urban development proposal on an existing development site would normally present,” the first respondent was applying the wrong test; that he was suggesting that the applicable test was whether the likely effect of the development would be more significant than that which would normally be expected of an urban development on an existing development site. But Mr Willers did not whole-heartedly embrace that argument, and I have concluded that there is nothing in the point. It is not a fair reading of the screening decision and the other documentation, when taken as a whole. The reference to “over and above that which any urban development on an existing development site would normally present” was a matter of background/context. It was not seeking to change the test or to apply a test to an urban area that would not be applicable to a proposed development in a nonurban area or of an existing undeveloped site.

Finally, in relation to both the potential arguments about these two sentences raised under Ground 5 and discussed above, I am mindful of the clear guidance given to judges considering judicial review cases against over-analysing decisions and applying too strict an interpretation to individual words and phrases, and the need to approach the decision as a whole: see for example Lord Bingham in Clarke Holmes v Secretary of State for the Environment [1993] 66 P & CR 263 at 271 and Hoffmann LJ in South Somerset District Council v Secretary of State for the Environment [1993] 66 P & CR 83 at 84. This might be regarded as a classic example of taking individual sentences out of context and overlaying them with a significance which they were never intended to have. I consider that, in the round, the screening direction confirmed

I would therefore reject Ground 5 of the appeal.

This was, within the context of Schedule 2, a relatively modest proposal to develop a site in an urban area which had had various uses over the years. The conclusion that the development was not likely to have a significant effect on the environment has not been shown to be in any way irrational. The judge was right to reject the judicial review challenge and, if my Lords agree, I would dismiss the appeal against her decision.

I agree.

I also agree.