Fernback and others v Harrow London Borough Council

Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 – Applicant developer requesting screening opinion in accordance with regulations – Council adopting negative opinion – Applicants filing application – Council receiving further reports on traffic implications – Council granting application without assessment – Whether council obliged to reconsider opinion – Whether planning committee misled by report on traffic matters The interested party (Laing) wished to develop the site of a former RAF station in Stanmore, Middlesex, located less than a mile from the town centre. Before applying for planning permission, Laing, pursuant to the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, sought a screening opinion from the defendant council as to whether the proposal would require an assessment (EIA). In September 1999 the council gave two reasons for concluding that no EIA was required (thereby “adopting a negative screening opinion”), namely: (i) the development would not give rise to a use significantly greater than the previous use; and (ii) the planning authority would require the submission of a transport impact assessment predicting the transport demands of the development and identifying what mitigation measure, if any, might be required. In November 1999 Laing made a planning application which was considered by the relevant council committee in June 2000, along with a detailed report (the internal report) from the chief planning officer. The report recommended that the development should be allowed. In September 2000 the committee considered a further internal report and a report commissioned from a firm of traffic consultants, which provided an overview of traffic impact data and its implications in the light of current developments in the Stanmore area. While accepting that the development, in conjunction with others, would exacerbate the traffic congestion experienced in the town centre, all the reports concluded that it would be difficult to refuse the application on highway grounds. The reports laid heavy emphasis upon the national policy, as expressed in PPG 13, of fostering brownfield developments that encourage walking, cycling and the use of public transport. Later that month, following lengthy debate, the committee resolved that permission should be granted, subject to the completion of a section 106 agreement dealing with transport and other matters. The claimants were a group of local residents, who challenged the decision on two main grounds: (i) the committee had been misled by the first report into believing that congestion could not be a legally valid reason for opposing the application; and (ii) since additional material relating to congestion had been received by the council after the screening opinion was given, they were under an implied duty to reconsider their earlier opinion before proceeding further with the application.The claimants’ first ground was rejected after the judge found that the committee, reading the reports as a whole, could not have been misled by the “infelicitous wording” of a short passage in the first internal report. The judge then turned to the second issue. Held: The council were not obliged to reconsider their screening opinion. In contrast to the Secretary of State, planning authorities had no power to adopt a further screening opinion in the absence of a request from the proposed developer. However, it was clear from the regulations that, unlike a positive opinion, and unlike a direction made either way by the Secretary of State, the adoption of a negative opinion by a local planning authority was not determinative. It was accordingly correctly stated in Circular no 2/99 that there might, exceptionally, be cases in which, because of the submission of further information, an authority would be entitled to require an EIA, notwithstanding the prior negative screening opinion. In such a case, the power of the Secretary of State to make a screening direction under regulation 4(7) would provide a fallback position, enabling an authority to seek such a direction where it had taken the view that the development was an EIA development. Given those considerations, and having regard to the fundamental prohibition in regulation 3 against allowing an EIA application when it was unaccompanied by the required assessment, there was no reason for implying the duty contended for by the claimants.* *Editor’s note: The judge also rejected (after considering R v Amber Valley District Council, ex parte Jackson [1985] 1 WLR 298) a further submission that certain prior deliberations by committee members belonging to the Labour majority had effectively disabled the full committee from exercising an independent judgment. Eian Caws (instructed by Mishcon de Reya) appeared for the applicants; David Mole QC, Paul Brown and Paul Greatorex (instructed by the solicitor to Harrow London Borough Council) appeared for the respondents; Matthew Horton QC and Reuben Taylor (instructed by Turbervilles) appeared for Laing Homes Ltd, the interested party. Alan Cooklin, barrister