Case Comment: EIA Screening Decisions - The duty to give reasons

The Court of Appeal decision in Jedwell v Denbighshire County Council & Ors [2015], which overturned the decision handed down by the Administrative Court, during Judicial Review proceedings, earlier this year, highlights the importance for planning officers to provide adequate reasoning when making a determination that an Environmental Impact Assessment ("EIA") is not required.

Whilst the Court of Appeal concluded there was a procedural irregularity (the planning officer in charge of the case was not cross examined about her evidence), the fundamental issue in this case was the scope of the obligation on local planning authorities to give reasons when adopting EIA screening opinions, whether they are positive (an EIA is required) or negative.

What exactly happened?

In July 2013, Denbighshire County Council granted planning permission for two wind turbines. In considering whether planning permission should be granted the planning officer in charge of the case was required to determine whether an EIA was required - her determination (known as a screening opinion) was that an EIA was not needed. Planning permission was subsequently granted.

The decision was challenged by way of Judicial Review, by an opposed local resident and the matter went before the Administrative Court. The grounds for challenge were, inter alia,

"that the reasoning in that screening opinion was inadequate; that the inadequacy was not cured by subsequent events, and that in consequence the grant of planning permission was itself invalid."

What is an EIA and when is one needed?

As most will know, an Environment Impact Assessment is an assessment of the likely impacts that a proposed development may have on the environment. An EIA is a requirement of many major projects before planning permission or a development consent order can be granted.

The requirement for an EIA (in England) is set out in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. Regulation 4(7) provides, if it is decided an EIA screening opinion is required, that:

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

In Wales the position is governed by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.  Under these regulations, it is only where a proposed development is considered to be an EIA development that the Regulations expressly require that this be accompanied with the officer's reasons for making the decision. However the European case of Mellor serves as good authority that reasons for a negative opinion are required.  As such, the obligation to give reasons extends to screening opinions adopted in either England or Wales, whether they are positive (an EIA is required) or negative.

In this case the contemporaneous notes for the screening opinion were argued to be inadequate and the Administrative Court judge agreed.  However he stated that the planning officer had subsequently properly explained her reasoning in a later witness statement and dismissed the appeal, thereby upholding the planning consent. 

The Court of Appeal decided that the refusal of the Administrative Court judge to allow cross-examination of the planning officer during the Judicial Review hearing about her witness statement (written long after the screening opinion was made) was a procedural irregularity.  Therefore the Court of Appeal, allowed the appeal and remitted the case to the Administrative Court to consider again.  

The Court of Appeal went further and commented that the planning officer's witness statement had not cured the earlier deficiency - i.e. the failure to provide adequate reasons. This was because "the contents of the planning officer's witness statement had not been disclosed before the resident issued his claim form." It noted then that "if a reasonable time had elapsed but proceedings had not been commenced, the local authority might still cure any deficiency by supplying further reasons before the commencement of proceedings."

What can Planning Officers take away from all of this?

Whilst it is unusual (or at least is has been until now) to face cross examination in cases like this, planning officers would be best advised to make detailed, comprehensive and contemporaneous notes when making a determination that an EIA is not required as they may now find themselves being cross examined on the reasons why they have made a particular decision.

One of the key points coming out of this case is that:

"The reasons [which supplement the screening opinion] had to demonstrate that the author had understood and considered the issues, and that proper consideration had been given to the possible environmental effects of the development. They also had to be sufficient to enable the interested party to understand why the decision had been made and to decide whether to challenge it."

To read the full case, please click here.