Jedwell v Denbighshire County Council

Town and country planning – Planning permission – Environmental impact assessment – Council granting planning permission for installation of wind turbines – Whether planning officer giving adequate reasons for decision not to obtain environmental impact assessment – Claimant local resident applying for order quashing decision – Whether screening opinion being irrational – Whether planning officer applying too high threshold – Whether planning committee acting irrationally – Application dismissed The interested parties ran as partners an organic livestock farm on which both cattle and sheep were run. It was a tenanted farm, with large hillside areas, located on the outskirts of Llandrillo, Denbighshire. The interested parties commenced negotiations with the defendant local authority for planning permission for the installation of two wind turbines with a control box and access track. The defendants’ planning officer emailed the Countryside Council for Wales (CCW) for its view on the need for an environmental impact assessment (EIA) and subsequently issued a negative screening opinion. The interested parties then submitted their formal application for planning permission. The officer’s report prepared for the planning committee meeting recommended refusal of permission. However, the planning committee, by a majority, resolved to grant permission, subject to conditions and subsequently granted planning permission. The claimant local resident issued proceedings, seeking an order quashing the grant of permission. The claimant contended that: (i) the planning officer had failed to give adequate reasons for the decision not to obtain an EIA, either in the original screening opinion or in conjunction with her subsequent witness statement; (ii) the view expressed in the screening opinion had been irrational; (iii) the planning officer’s witness statement showed that she had applied too high a threshold for the expression ‘likely to have significant effects’ in Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999; and (iv) the planning committee had acted irrationally and/or had taken into account immaterial considerations. Held: The application was dismissed.The reasons given in the original screening opinion were so brief that there was very little that could be discerned about them other than that the development would not give rise to significant effects. However, the subsequently articulated reasons for reaching the opinion expressed in the witness statement sat perfectly happily with the relevant considerations and documentation. There was nothing from which the court should conclude that the planning officer had not had the issues mentioned in the witness statement in mind when she had formulated the screening opinion and her witness statement should not be seen as an ex post facto rationalisation. While each case depended on its own facts, but for the contents of the witness statement, the court would have been driven to conclude that the reasons given in the notice concerning the screening opinion had been inadequately expressed: R (on the application of Friends of Basildon Golf Course) v Basildon District Council [2010] EWCA Civ 1432; [2010] PLSCS 317, R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 and Smyth v Secretary of State for Communities and Local Government [2013] EWHC 3844 (Admin); [2014] PLSCS 26 considered.(2) The defendants had been entitled to say that the planning officer had reached a conclusion that was consistent with the view of the CCW, which had been consulted on the application for the screening opinion and had taken the view that an EIA had not been required. Accordingly, an irrationality challenge to the screening opinion could not succeed: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 applied; R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin); [2001] PLSCS 30 considered.(3) The planning officer had not misdirected herself on the threshold issue. The approach which currently bound a planning officer in applying the threshold for the expression “likely to have significant effects” (and which bound the court in evaluating it) was precautionary. A serious possibility of significant environmental harm, a wide ambit being given to the word “significant” which was largely a matter of planning judgment, seemed to be the trigger. It was an over-complication for every screening opinion to require some kind of exegesis on the state of the authorities on the meaning of the words “likely” and “significant”, which seemed to be the effect of the claimant’s argument. That argument did not take the matter any further than the argument as to the rationality of the decision itself: R (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869; [2012] PLSCS 147 applied.(4) It was clear that there had been a strong recommendation from the officers to the planning committee that the application should be refused, essentially on grounds concerning the effect on the landscape. The comments from the planning committee meeting highlighted by the claimant had not clearly demonstrated the kind of perverse reasoning that would have to be shown before a court would interfere. Where the planning committee had differed from the recommendations of the officers, it was entitled to bring its own evaluation of the weight to be given to the various material factors and the mere fact that the majority had reached a different conclusion in the balancing exercise did not mean that the conclusion was irrational: R v Mendip District Council, ex parte Fabre [2000] PLSCS 6; (2000) 80 P & CR 500, R (on the application of Oadby Hilltop and Meadowcroft Conservation Area Association) v Oadby and Wigston Borough Council [2011] EWHC 60 (Admin) and R (on the application of Cherkeley Campaign Ltd) v Mole Valley District Council [2013] EWHC 2582 (Admin); [2013] PLSCS 217 considered. Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law) appeared for the claimant; Jonathan Easton (instructed by Denbighshire County Council Legal Services) appeared for the defendants; John Hunter (instructed by Aaron & Partners LLP) appeared for the interested parties. Eileen O’Grady, barrister