PP 2010/33

Where a local planning authority (LPA) issues a screening opinion for the purposes of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 it will have to decide whether the proposed development falls within the descriptions set out in Schedules 1 and 2 to the regulations and, in the latter case, whether the development is likely to have significant effects on the environment. The House of Lords held in Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2001] 3 PLR 111 that such a decision was reviewable by the courts only on traditional Wednesbury grounds. In R (on the application of Birch) v Barnsley Metropolitan Council [2010] EWHC 416 (Admin), a developer had applied for planning permission for a waste-composting site on agricultural land. Garden waste would be taken to the site, piled up in windrows and allowed to biodegrade. Thereafter, it would be used as fertiliser on the developer’s land. The LPA issued a screening opinion to the effect that the development was not an EIA development. It took the view that although the development fell within col 1 of para 11(b) of Schedule 2 – installation for the disposal of waste – it did not meet the relevant threshold or criterion set out in col 2, namely a development area exceeding 0.5ha. As a result, it did not go consider whether the development was likely to have significant effects on the environment. The LPA later granted planning permission. The claimant successfully sought judicial review of that decision, principally on the ground that the LPA had failed to comply with its obligation under the regulations to determine whether the development was an EIA development. The court quashed the decision to grant planning permission, holding that the LPA had made a serious error in formulating its screening opinion. It had failed to consider whether the material that was to be spread on the developer’s land should also have been viewed as “waste”. (The claimant had relied on evidence that, at the point of spreading, the material might only be partly degraded.) In such a case, the area of the development would have exceeded 0.5ha and the LPA would have then had to decide whether the development was likely to have significant effects on the environment. It may well have concluded that it did. John Martin is a freelance writer