Catt, R (on the application of) v Brighton and Hove City Council and Brighton & Anor

The claimant lives next to Withdean Stadium in Brighton which has, since 1998, been the home of the Interested Party (IP). Before that, the stadium was and had since 1955 been used for athletics. Before that, it had been a tennis club. The IP has for some time been seeking to establish a stadium on an out of town site, since it has been recognised that Withdean Stadium is unsuitable because it is in a residential area and its use gives rise to transport problems. A site had been located at Falmer, and, following a call-in, after some delay the First Secretary of State granted planning permission. Unfortunately, it seems that that permission was legally flawed since I was informed that a challenge has been brought which is not going to be contested. The only matters in dispute are the precise details of any consent to judgment.

Recognition of its unsuitability has led to temporary permissions to commence and to continue the use as a football stadium for the IP. In 1998, permission was granted until 30 June 2001. It was clearly envisaged that the use would not continue beyond that date. However, the IP was unable to find an alternative home and the use of the stadium continued. In November 2002, a further temporary permission was granted retrospectively until 30 June 2003. That permission authorised the provision of a further 960 seats.

Neither of those permissions received an Environmental Impact Assessment (EIA). Leading counsel had advised that such an assessment was not needed for the initial permission, which included the erection of floodlighting columns, and that advice was assumed to be valid for the second. No legal challenge was brought or threatened.

In February 2003, the defendants decided in principle to approve the IP’s application to continue the use until 20 June 2005, subject to the implementation of a s.106 agreement. That application included a further 1966 seats, bringing the total to some 9000, in a new permanent stand, the extension of existing stands, new changing rooms and the relocation of a hospitality unit. The expansion was required because the IP had had considerable successes and had won the second division championship in 2002. This had meant promotion to the then first division and has in its turn resulted in a greater demand for seats. Sadly, the IP has just been relegated. Following the conclusion of a s.106 agreement, planning permission was finally granted in October 2004. The defendants assumed that no EIA was required having regard to the advice given in 1998. That assumption was wrong and, when a legal challenge was brought, the defendants consented to judgment and accepted that it was necessary to have considered whether the proposed development would have significant environmental effects.

On 4 March 2005 it was decided that no EIA was required since a screening opinion, which the defendants adopted, concluded that the proposed development would not result in any significant effects on the environment. That decision was made public. It was challenged in correspondence and it was contended that the defendants should not grant permission unless an EIA was obtained. The defendants did not accept the criticisms and on 18 May 2005 a decision was made in principle to allow the IP’s use of the stadium to continue until July 2008. On 20 July 2005 the final grant of permission was made. The necessary s.106 agreement had been signed on 19 July 2005 and a Road Traffic Order, designed to assist in regulating traffic to avoid congestion on match days, was made on 20 July.

This claim was lodged on 10 October 2005. In it the claimant seeks to quash the grant of planning permission on the grounds that the screening opinion was flawed and an EIA was needed. In addition, it is contended that there have been failures to determine the application in accordance with relevant development plans and to give adequate reasons for the grant. The errors which it is said flawed the screening opinion are also relied on as failures to take account of relevant or to ignore irrelevant considerations.

In addition to resisting the claim on the merits, the defendants and the IP relied on delay. The IP needed to carry out the development as soon as possible following the formal grant of permission in order to be able to have its benefit for as much of the season which commenced in August 2005 as possible. Work was in fact commenced on 25 July 2005. It has now been, as I understand it, completed at considerable expense. In the circumstances, it is obvious that there will be prejudice to the IP if the permission is quashed and the ability to take advantage of the expansion of seating and the other improvements in the stadium is or may be lost. Because of the issues raised in relation to delay, I decided that there should be an oral permission hearing with the substantive claim to follow immediately if permission was granted. Since it is accepted that what is likely to determine whether delay should prevent relief if otherwise the claim would succeed is the extent of prejudice to the IP, I indicated in argument that I was minded to grant permission. All other procedural steps were waived and accordingly I am dealing in this judgment with the substantive claim. I consider delay in the context of s.31(6) of the Supreme Court Act 1981.

Since it is central to this claim, I must set out the legal requirements in relation to EIAs. The procedure was introduced to implement Council Directive (85/337/EEC) of 27 June 1985, which requires that “development consents for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of those projects has been carried out”. A recital of the Directive provides:-

“… the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life.”

The relevant domestic legislation is now contained in the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. EIA developments are identified in Schedules 1 and 2. Those within Schedule 1 are presumed to be likely to have a significant effect on the environment so that an environmental statement is needed for them. Those within Schedule 2 will only require such a statement if they are “likely to have significant effects on the environment by virtue of factors such as [their] nature, size or location” – see Regulation 2(1). The development in this case falls within Paragraph 10(b) (an urban development project, including the construction of a sports stadium with an area exceeding 0.5 hectare) combined with Paragraph 13(a) (any change to or extension of a development listed in the Schedule where that development is already authorised [or] executed … and the change or extension may have significant adverse effects on the environment).

If a development proposal is put to a planning authority which could require an environmental statement, the authority must decide whether it does. This will mean in relation to a Schedule 2 development deciding whether it is likely to have significant effects on the environment. The authority must produce what is called a screening opinion which will decide whether the development is indeed EIA development so that the applicant must supply an environmental statement. Schedule 3 to the Regulations sets out what are described as the selection criteria for screening Schedule 2 developments. They include its cumulation with other development and pollution and nuisances which may be caused by it. Its location must be considered and the environmental sensitivity of the area if, for example, it is densely populated must be taken into account.

If the screening opinion persuades the authority that it is EIA development, the applicant has the right to apply to the Secretary of State who must then make a screening direction, which will either uphold or reverse the authority’s opinion: see Regulations 5(3) and (4) and 7(1). If the screening opinion decides that the development is not EIA development and is adopted by the authority, the application will be considered on its planning merits without any environmental statement. The Regulations do not provide any third party with any rights of appeal against that decision and so the only remedy available is judicial review.

The question was raised whether if an authority adopts a screening opinion that a development is not EIA development, it can change its view before granting planning permission and decide that it is. This question was answered by Richards J in R(Fernback) v Harrow LBC [2002] Env. LR 10. He made the point that the fundamental provision in the 1999 Regulations was the prohibition in Regulation 3 on the grant of permission pursuant to an EIA application without taking the relevant environmental information into account. He decided that the authority was not under a duty to consider the matter further, but had the power to do so. This power would obviously be relevant if further information was produced to the authority which made it apparent that the negative opinion had not taken all material facts into account. It would also be open to the authority to reconsider following representations, but it would not normally be right to change its view if there were no fresh matters raised. This approach accords with Paragraph 66 of Circular 2/99, which contains the relevant guidance from the Minister. This reads:-

“… A screening opinion can only be adopted on the basis of the information provided at the time it was given. There may, exceptionally, be cases where an opinion has been given that EIA is not required for a proposed development, but it subsequently becomes evident (for example, from further information submitted in support of a planning application) that it is nevertheless an EIA application.”

Thus it is clear that a change of opinion is possible, but would only occur in exceptional circumstances. Unless an objector was able to produce material which had not been taken into account or to demonstrate an obvious shortcoming in the opinion, he could not reasonably expect his representations to bear fruit.

The claimant attacks the screening opinion on two main grounds. First, it is said that the effects of the project are defined too narrowly. The author should have considered the effect of the use as a football stadium not merely the effect of the proposals for additional seating and works. Secondly, it is said that it was wrong to have regard to measures which might mitigate any adverse effects in deciding whether the development was EIA development.

The development in this case is within Schedule 2 because it is a change to or extension of an existing urban development project. But because there had been a temporary permission which had expired, there was no permitted use as a football stadium. Thus in form the application was for an extension of the existing permitted use, which was for a sports stadium of a limited size and with limited facilities. The application was in these terms:-

“Provision of new stands and extension of existing stands to provide an additional 1966 seats. Replacement and relocation of two storey hospitality unit and addition of purpose built changing rooms. Addition of two storey stewards room and club office and new turnstiles. Continuation of use of Withdean Stadium until 30 June 2008 and the retention of existing temporary facilities.

Replacement and relocation of existing athletics clubhouse and alterations to athletics facilities.

Permission to allow Brighton & Hove Albion to play the first match in December on a Saturday and permission to play up to three matches per season on a Sunday during each season.”

The IP recognised in making the application that a s.106 agreement would be needed which contained at least remedial measures which had applied to the previous temporary permissions.

The screening opinion is a substantial document. In Paragraph 3.5, Mr Walke, its author, says:-

“In order to establish whether it is EIA development (all EIA development require an EIA) it is … necessary to consider whether it is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Paragraph 13(1) of Schedule 2 indicates that where the proposed development is a change or extension to development already authorised, executed or in the process of being executed, the impact to be considered is the impact caused by the change or extension. Thus the present assessment is to be limited to the impact of the present development proposal.”

That, submits Mr Upton, is to misunderstand what was required in the circumstances of this case. Mr Walke was referring to these words in Paragraph 13(i):-

“In relation to development of a description mentioned in Column 1 of this table, the thresholds and criteria in the corresponding part of Column 2 of this table applied (sic) to the change or extension (and not to the development as changed or amended).”

The language is far from clear, but the ‘thresholds and criteria’ do not concern the impact of the development: rather, they limit the circumstances whereby the proposal falls within Schedule 2. Thus a proposal can only fall within Paragraph 10(b) of Schedule 2 if the area of the development exceeds 0.5 hectare. That is the threshold or criteria referred to in Paragraph 13(1). An extension or change can only come within Paragraph 13 if on its own it exceeds an area of 0.5 hectare. The proposals in this case qualify because the area of the development proposed does exceed 0.5 hectare.

Since the extension or change can only come within Schedule 2 if on its own it passes the relevant threshold or meets the relevant criteria, it may be said that its impact should also be considered on the same basis. However, that seems to me to produce a wholly artificial situation. The environmental impact of the whole ought to govern whether an EIA is needed. If the change or extension cannot reach the necessary threshold, it is assumed that it will not affect the whole in a significant way so as to require an EIA where none was needed before. But once it does qualify it will be impossible to consider the additional development in isolation. That would be contrary to the underlying purpose of the Regulations and the Directive. There is here in any event the added consideration that the change proposed in this development is to the existing permitted use, namely a stadium not used for professional football, and so, whatever limitations are properly put on consideration of its impact, it must extend to the whole use as a professional football stadium, with the stands and facilities appropriate for that use.

In Paragraph 3.8 of the opinion, Mr Walke identifies the elements in the proposal, including the continuation of use of the stadium by the IP, and concludes:

“The impact of each of those elements, and any potential for cumulative impact, are considered below taking account of the headings set out in Schedule 3 of the Regulations.”

It is clear from the way in which he deals with the effects of the development that he is considering the overall result of the development. It would in reality be impossible to isolate out the effects of the changes and Mr Walke does not attempt to do that. That is perhaps most clearly stated in Paragraph 3.14, where he says:-

“Withdean Stadium has been in use as a sports stadium since 1955 and the site lies within the built-up area of Brighton and Hove. Whilst Brighton and Hove Albion’s use of the stadium represents an intensification in use, it retains the existing character of a sporting activity viewed by spectators. Whilst a more intense environmental impact may be expected from the proposal compared to established use of the stadium for athletics, the character of the use and its impact is similar. As stated above, it is primarily human activity on match days that would generate environmental impacts.”

The conclusions are set out in Paragraphs 4.1 and 4.2 of the opinion. These I should cite in full:-

“4.1

Brighton and Hove Albion’s use of Withdean Stadium undoubtedly has some impact upon the surrounding residential area. However, that impact is limited in frequency and the development is proposed to be for a limited period. The impact can be considered to take place over a fairly sizeable area including related traffic and pedestrian movements but diminishes rapidly with increased distance from the Stadium. There are no significant polluting or natural resource implications. No features of recognised natural or man-made importance would be significantly affected by the proposal. The Football Club have put in place stewarding measures and sustainable transport arrangements to reduce any impact upon the surrounding area.

4.1

From the above considerations it is concluded that, although the proposal is Schedule 2 development, significant effects on the environment will not occur. The recommendation is that the Local Planning Authority adopts a formal screening opinion that EIA is not required for the proposed development contained within planning application BH2005/00464/FP.”

While Mr Walke may have believed that he was only obliged to consider the impact of the changes proposed in the development(although he does not limit himself to the changes to what was allowed by the previous temporary permissions), in reality, as his opinion indicates, he had to consider the impact of what resulted when the whole development took place. The claimant asserts that the effect is greater than merely on match days. There is always disruption and there have been occasions when crowds are attracted to the stadium for special events other than the IP’s matches. Furthermore, the general use other than for football matches creates its own disruption which is sufficient to amount to a significant effect on the environment. The relevant environment is a quiet residential area by a nature reserve. Thus, it is said, the level of nuisance activity is such that it was unreasonable to decide that it was not EIA development.

Whether or not there was a significant effect is a matter of judgment. I can only interfere if persuaded that that judgment was irrational or failed to have regard to material considerations. A fair reading of the opinion shows that Mr Walke did consider the overall impact. In Paragraph 3.16 he said this:-

“Whilst the proposal involves a concentration of activity within certain time periods, it is not considered that the character of the impact is sufficiently different to normal urban activity to generate significant environmental effects upon the urban area,”

In Paragraph 3.24 he notes that the duration and frequency of the impact from football matches, which he properly regards as the main issue, is limited. It must be remembered that an adverse effect on a person’s amenities (which is a proper planning consideration) is not the same as an effect on the environment. The latter is something which will normally be expected to be more serious and usually more than spasmodic. I am satisfied that the opinion did properly take account of the overall effect of what was proposed and the use of the stadium generally and that the exercise of judgment cannot be regarded as tainted so as to be unlawful.

It was argued that regard should have been had to the continuation of the impact. The claimant had bought his house some 6 years ago in the belief that the use of the stadium for professional football was limited in time (then to 2001). He has seen extensions and it now appears likely that it may go on beyond 2008. In addition, the impact as extensions to the seating and facilities have been allowed has got worse. Account should, it is submitted, have been taken of the cumulative effect. Reliance is placed on observations of Simon Brown, L.J. in R Swale BC ex p RSPB [1991] J.P.L. 39 at p41 that the question whether a proposal was likely to have significant effects on the environment should not be answered by considering the effects of the proposal in isolation ‘if in reality it is properly to be regarded as an integral part of an inevitably more substantial development’. The purpose behind that observation was to prevent the avoidance of environmental statements by piecemeal proposals. It does not apply here. If a proposal is made for a further extension beyond 2008, it will be considered on its merits then. This proposal is not part of a more substantial development, even if in due course the IP needs to make an application to remain at Withdean for a longer time.

The opinion takes the mitigation measures particularly in relation to traffic congestion, into account. Mr Upton submits that this was improper. Effects on the environment must be considered independently of whether those effects can be mitigated or even avoided, at least unless the measures are plainly established and uncontroversial. These were not; indeed, the traffic measures which had been in place had not been entirely successful and the proposals were accompanied by a Traffic Control measure which, as it has turned out, has had to be abandoned following a challenge by a body adversely affected by it. Mr Upton relies on a decision of the Court of Appeal, Bellway Urban Renewal Southern v Gillespie [2003] 2 P.T.C.R. 236. While the three members of the Court did not speak in precisely the same terms, it is plain that it was accepted that the decision maker (in that case, the Secretary of State) was not required to ignore proposals for renewal measures. If they are included as part of the development proposal itself, it would be strange if they had to be ignored. Whether they would be likely to achieve the result suggested would be a matter to be considered and any doubt on that should be resolved against the applicant. Here it was accepted and anticipated that similar measures to those which had been required for the earlier permissions would apply. The defendants had had experience of how they worked. That experience could properly be relied on in assessing whether the environmental effect was significant enough to require an environmental statement. While the claimant takes issue with their effectiveness, Mr Walke was in my judgment entitled to have regard to them in deciding whether this was EIA development.

It follows that I am not persuaded that there was an error in the conclusion that this was not EIA development. I understand and entirely sympathise with the claimant. He has to live with a stadium which he reasonably believed would have reverted to its pre-1998 level of use by 2001. As the IP became more successful the adverse effects on his amenities increased. But, as I indicated, I can only act if there has been an error of law and I see none in the screening opinion.

The complaints against the decision to grant planning permission and the reasons given lack substance. My attention was drawn to what was said to be a relevant development plan, namely the Brighton & Hove Local Plan. The policy on major sporting venues read:-

“Planning permission will be granted for improvements to the existing and spectating facilities at these venues [which included Withdean Stadium] and other related uses which would improve the attractiveness of those major sporting venues, provided that they are not detrimental to the amenities of the local area.”

It was submitted that since the development would be detrimental to those amenities of those such as the claimant who lived by the stadium, it would be contrary to this and so fall foul of s.38 of the Planning Act. However, it transpired that the plan in question was only a draft, at the time of the decision. Thus, although it was a material consideration, it did not engage s.38. Furthermore, policy QD27 of the Local Plan in force provided that planning permission would not be granted for a development ‘where it would cause material nuisance and loss of amenity to the adjacent residents’. Whether it would do so is a matter of judgment, since the extent of any such nuisance is obviously relevant to its materiality. The lengthy and detailed report to the committee which decided to grant permission covered all relevant matters and concluded that on balance the impact on residential amenity could be minimised by the remedial measures and so there would be no breach of the policy in permitting the development. That was a lawful approach.

The reasons given for permitting the development were:-

“The Council recognises that the applicant plays a large role in the local community and economy. An important consideration is the need to find a temporary solution to the difficulties faced by the applicant in finding a permanent venue for home football matches. Against this, another major consideration is the significant disturbance which matchdays can cause to surrounding residents. The Council believes on balance that permission should be given to allow home football matches to be played at Withdean until 30 June 2008, to protect the interests of the applicant until permission can be obtained for a permanent venue. The Council believes that impacts on residential amenity on matchdays (approximately 25-30 occasions per year) can be minimised through conditions. The impact of football matches on the use of the stadium by athletics clubs is also considered acceptable in view of conditions imposed.

Matchdays clearly cause significant disturbance to the surrounding residents and this impact is the main issue for consideration. Many objections have been received on a variety of grounds relating to the impact of the club’s activities upon the surrounding residential area. A substantial number of letters of support have been received stressing the importance of the club to the city.

A range of transport measures have been in place for several years and have proved relatively successful. Further investigation of a residents parking scheme can be made to address parking within the cordon and additional measures can be sought to address the proposed additional seats. Environmental Health are satisfied that noise issues can be addressed through appropriate conditions. The proposal would have no significant impact upon the nature reserve or crime and safety issues. The frequency and duration of matches is very limited. Athletics facilities will be retained and enhanced. The proposed structures generally have a temporary.”

It seems to me that they are adequate. They make clear that the committee has considered the adverse effects of the development and had proper regard to the objections raised to it. But, as is almost always the case in deciding on planning applications, a balance has had to be struck. There is nothing in any policy which establishes that the development is contrary to it. Equally, there is no positive green light for it. Thus a balance had to be struck and the reasons show what the committee took into account and why the decision was reached to approve the proposal.

My decision to dismiss this claim on its merits means that I do not need to consider delay. However, I have heard arguments on the issue and it raises a point of principle.

On 14 July 2005 the claimant’s solicitors wrote a pre-action protocol letter, copied to the IP, in which they raised the EIA point. There were also matters which have not been pursued. On 21 July 2005 the defendants responded in detail and rejected all the complaints. On 28 July 2005 the claimant’s solicitors stated they were, ‘subject to the grant of legal aid instructed to issue an application for judicial review’. On 22 August, the claimant’s solicitors asked the Legal Services Commission to put the application for legal aid on hold. This was because they had ascertained that there was a challenge to the Traffic Control Order which they believed would mean that the planning permission would be unable to be implemented. While that belief may not have been unreasonable, it was mistaken. More importantly, the solicitors failed to notify the defendants or the IP that they were holding back for the time being but that this claim would be pursued if necessary. For their part, the defendants and IP say that the absence of any further contact led them to believe that the matter was not being pursued because of a recognition of the validity of their rejection of the grounds of challenge.

It was not until 14 October 2005 that this claim was lodged. The solicitors did not notify the other parties but left it until the court notified them that the claim had been issued. That was on 25 October 2005. Thus the claim was lodged right at the end of the maximum period of 3 months permitted by the Rules. The IP submits that the delay had prejudiced it and the court should refuse relief on that ground.

Mr Upton submits that the delay has not caused any prejudice. The club entered into contracts on 18 July and by 25 July were committed to having the work done. Thus even if the claimant had acted more speedily, the prejudice would have been the same. I have no information on the precise terms of any contract, but it is inconceivable that account would not have been taken of what was then believed to be an imminent threat of legal proceedings. Once that threat receded, the work would continue. Furthermore, an early challenge should and, I hope, would have led to an early decision so that the IP would have known where it stood well before the end of the 2005/6 season. I am satisfied that there has been prejudice occasioned by the delay.

Mr Upton relies on R(Burkett) v Hammersmith & Fulham LBC [2002] 1 W.L.R. 1593. Since this claim challenges the grant of planning permission, time did not begin to run until 20 July 2005. That is because it is necessary to wait for the final decision and a challenge to a resolution that permission should in due course be granted is premature. At that stage, it cannot be said that a grant of permission is certain to follow.

Burkett’s case concerned a challenge which was in part based on the alleged inadequacy of an environmental statement. But it did not deal with nor did the House have to consider a challenge to the absence of such a statement. That, as it seems to me, is itself a final decision and one which is capable of being judicially reviewed. The decision that the screening opinion should be adopted was made on 4 March 2005. Mr Upton submits that, because in theory at least there was a chance that it might be decided that this was EIA development before any grant of planning permission was made, time should not begin to run until the grant of permission occurred. That, he submits, is consistent with the approach of the House of Lords in Burkett’s case and, indeed, follows from it.

Whether or not it could be changed, the decision that it was not EIA development was one which had effect from the moment it was made. Many decisions of public authorities can be changed, but it is not consistent with good administration to permit time to run afresh if an application to review or change the decision is rejected. This was not a provisional view and so was not the sort of decision with which Burkett’s case was concerned.

In R(Malster) v Ipswich Borough Council [2001] EWHC Admin 711, Sullivan J, in dealing with a case involving a complaint that a screening opinion was unlawful, said this towards the end of his judgment:-

“Where such a challenge is made, it is of vital importance that it is made promptly. Faced with a challenge to the lawfulness of a screening opinion, the local planning authority may wish to reconsider its position and ask the Secretary of State to make a direction accordingly … or the developer may volunteer an EIA. It is not appropriate to wait until after planning permission has been granted, when it is too late to remedy the omission, and then complain that the screening opinion, which has been on the public register for some months, was erroneous. Each case will of course depend on its own particular facts but, as a general rule, where there is a discretion challenge to a screening opinion, it should … be made promptly so that any error, if there is one, can be remedied before the planning application is considered by the local planning authority.”

Those observations were made before the decision of the House of Lords in Burkett. But in my view they are unaffected by Burkett since, as I have said, the adoption of the screening opinion is a decision which has immediate legal effect and the fact that it may in theory be changed is nothing to the point. So here the challenge to the opinion should have been made before the grant of permission was considered. Since the maximum period of 3 months permitted by the Rules expired in early June, it is obvious that the prejudice to the IP could have been avoided if the claim had been lodged timeously.

Apart from that, as I have already said, I am satisfied that the failure to act promptly and to keep the other parties aware of the continued intention to take proceedings constituted unwarranted delay and prejudiced the IP. Therefore I would have refused relief on the ground of delay. The obligation to act against the screening opinion by June 2005 would have prevented reliance on its alleged unlawfulness. The further delay in lodging the claim would have defeated all grounds.