R (on the application of ANDREW JEDWELL) (Claimant) v DENBIGHSHIRE COUNTY COUNCIL (Defendant) & (1) DH JONES (2) DR JONES (Interested Parties) (2016)

The court set out guidance on the giving of reasons in cases where a local planning authority had issued a negative screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ruling out the need for an environmental impact assessment in determining a planning application.

The court was required to determine, as remitted issues, whether a planning officer’s later statement had provided her contemporaneous reasons or an ex post facto justification for issuing a negative screening opinion, and the appropriate relief following the defendant local authority’s established breach of duty to give reasons within a reasonable time.

 

The interested party developers had applied for planning permission for the erection of two wind turbines at a site close to several specially protected areas, an existing wind farm and a proposed wind energy development. In March 2012, the planning officer, on behalf of the local authority, issued a screening opinion stating that no environmental impact assessment would be required: her reasons were that the proposed development would not give rise to significant effects. She went on maternity leave in December 2012. The local authority granted permission in February 2013. The claimant, a local resident opposed to the development, sent the local authority pre-action protocol letters complaining of the negative screening opinion’s lack of reasoning, in particular as to the proposed development’s cumulative impact with the existing nearby windfarm and the other one proposed. The local authority declined to give further reasons for the decision, having stated that it was inconceivable that the planning officer had failed to have regard to cumulative effects and that there was no requirement under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 to give reasons for a negative screening opinion. That view was mistaken, as an obligation to give reasons for a negative screening opinion was confirmed as a matter of European law by the ECJ in R. (on the application of Mellor) v Secretary of State for Communities and Local Government (C-75/08) [2010] P.T.S.R. 880. The claimant issued judicial review proceedings, seeking to quash the planning permission on the basis that the screening opinion was inadequately reasoned. By a witness statement made in October 2013, the planning officer explained that she had paid regard to the impact of the proposed development in the light of the existing and other proposed windfarms, but considered that it was unlikely to have significant environmental effects, so that a negative screening opinion was appropriate. The judge accepted that the screening opinion was inadequately reasoned, but found that its deficiency in reasoning was “cured” by the planning officer’s statement. In doing so, he had refused permission to cross-examine the planning officer on the basis that her statement adequately set out her contemporaneous reasons for giving a negative screening opinion. The claimant appealed. The Court of Appeal found that the screening decision was inadequately reasoned, that the claimant’s first pre-action protocol letter amounted to a valid request for reasons and that the local authority’s response did not satisfy its legal duty to give reasons, although it was unclear whether the planning officer’s statement remedied that position. It held that the judge should have permitted her to be cross-examined in order to establish whether the reasons given in her witness statement were contemporaneous or an ex post facto justification of the decision. It remitted that issue, and the question of remedy, to the instant court. The planning officer gave oral evidence and was cross-examined.

 

HELD: (1) The planning officer was a credible and truthful witness. Having heard her oral evidence under cross-examination, there was no real possibility that her statement had set out a rationalisation of her decision as opposed to her contemporaneous reasoning. The local authority had undoubtedly been in breach of its duty to give reasons for a negative screening opinion within a reasonable time of a request, Mellor applied. However, since adequate reasons had now been given, the instant case was not one in which it would be appropriate to give substantive relief. As a result of that breach, the claimant had not been deprived of any right or opportunity granted to him as a member of the public by European law, and he had suffered no prejudice in the planning process. The judicial review claim was therefore allowed, but the substantive relief was restricted to a declaration that the local authority was in breach of its Mellor duty to give reasons for its negative screening decision within a reasonable time of the claimant’s request (see paras 83-86, 95 of judgment).

 

(2) Whilst every case was necessarily fact-specific, the following propositions in relation to the giving of reasons in a negative screening case under the Regulations could be derived from principle and the authorities:

 

(a) a local planning authority was required to give reasons for a negative screening opinion within a reasonable time of a request; in other words, it bore the Mellor duty. Those had to be the reasons in its mind at the time of the decision, and not an ex post facto justification. If it failed to give reasons within a reasonable time of request, it would be in breach of duty. Given the possibility of a request coming in perhaps months or even years after the EIA screening decision was taken, authorities would no doubt wish generally to maintain a note of the decision-maker’s reasons for any negative screening decision, so that those reasons could be sent out if and when any request was made;

 

(b) once proceedings were issued, whilst it would be too late for an authority to avoid a breach by providing reasons, if the authority thereafter provided reasons, and the court was persuaded that they were indeed the reasons in the local authority’s mind at the time of the decision, the court was likely to be slow to quash the planning permission. That was because it was unlikely that interested parties would have been denied any right or opportunity to participate in the planning process given by European law, or that anyone would have been materially prejudiced by the delay in providing reasons. In those circumstances, the court might, however, penalise the authority in costs;

 

(c) if no contemporaneous reasons were forthcoming (including, a situation where the court rejected the submission that reasons put forward were contemporaneous), then in accordance with usual public law principles, the planning permission should be quashed unless the authority could show that the decision would inevitably have been the same if the breach had not occurred; or, if remitted, the decision would now be the same. The burden was on the authority, and whether it had discharged it would be dependent upon the evidence, particularly the evidence it had adduced in those issues. The court would be wary of the possibility that, in producing such evidence, the authority might be under some pressure, conscious or unconscious, to maintain the planning permission decision (para.94).

 

Judgment accordingly

 

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