R (on the application of Gibson) v Harrow District Council

Development – Planning permission – Environmental impact assessment – Defendant council granting permission for development of open space – Claimant applying for judicial review – Whether defendants failing to consider need for an environmental impact assessment (EIA) – Whether defendants failing properly to consider development plan policies – Application dismissed A parochial church council (the interested party) owned a grasses area of about 1.4 hectares of open land. The land was largely surrounded by houses with gardens backing on to it. There was a vehicular entry point on to the land from one of the surrounding roads and a footpath entrance but generally the land could not be seen from those roads because it was screened by the houses. The land was private and not open to the public. The entrances were gated and locked. On 10 February 2012, the interested party obtained from the defendant local authority, on its fourth application, planning permission to develop the land. The development was to provide residential accommodations in the form of seven one-bedroom flats, eight two-bedroom flats, four three-bedroom houses and eight four-bedroom houses, together with retention of 0.69 ha of open space. The retained open space would be open to the public as a result of an agreement which the interested party was required to enter into as a condition of the grant of planning permission. The claimant had lived in one of the houses backing onto the land since 1981 and was opposed to any development of the land. He applied for judicial review of the grant of planning permission on the grounds that: (i) there had been a breach of the defendants’ obligations to consider whether there had been a need for an environmental impact assessment (EIA) under Council Directive 85/337/EEC and the Town and Country Planning (Environmental Assessment) Regulations 2011 which implemented it; and (ii) the defendants had failed properly to deal with the relevant policies which should have been taken into account and given effect. An EIA screening opinion had been produced in 2010 in relation to the third planning application but no further consideration had been given to the need for an EIA assessment in relation to the fourth application. Held: The application was dismissed.(1) Even though the screening opinion had been produced much earlier and was a decision capable of challenge by objectors to the development at the time it was produced, it was open to the claimant to challenge the adequacy and lawfulness of the screening opinion in the present proceedings. The operative planning decision which had immediate impact upon the claimant was the grant of planning permission and it was just and fair that he should have the opportunity to challenge the basis for and lawfulness of that decision, including the screening opinion on which it was implicitly based. A local resident who objected to a proposed development which might affect him ought not to be required to engage in the expense and effort of launching legal proceedings to challenge an EIA screening assessment, which might ultimately have no material impact upon him if planning permission was refused, on pain of losing the opportunity to challenge such an assessment later if necessary. A local resident would usually be entitled to wait to see if planning permission was granted and then bring forward all the relevant grounds of challenge available to him, including in relation to any EIA screening assessment, to question the lawfulness of that grant of permission: R (on the application of Catt) v Brighton and Hove City Council [2007] EWCA Civ 298; [2007] PLSCS 69. (2) On the substantive merits, the claimant’s challenge to the lawfulness of the screening opinion could not be sustained. A screening opinion need not be elaborate, but had to demonstrate that the issues had been understood and considered, based on information which was sufficient and accurate. Here, the screening opinion referred to the nature of the development and made it clear in terms that the development was to be by way of building a significant number of homes on open space located in an urban and predominantly residential area. That was sufficient and adequate to show that that aspect of the development had been properly taken into account for the purposes of the EIA screening assessment: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 applied. (3) Although the defendants had failed to comply with their obligation to place the earlier screening opinion on the register in relation to the fourth application, where there had been no significant prejudice caused to a claimant by that breach, the court retained a discretion not to quash the relevant decision. It was open to the court to weigh prejudice to public or private interests if a decision was set aside against the prejudice suffered by the public and the person complaining of the breach. In the present case, the court was satisfied that it was correct to refuse the relief sought by the claimant in the form of an order to quash the planning permission granted. The claimant had suffered no detriment at all arising from the breach and there had been no breach by the defendants of their substantive obligation to ensure that an EIA screening assessment of the development was carried out: that was properly done and the assessment carried out was lawful. The development had been identified to be in the public interest, in that it would expand public access to an open space and increase the supply of affordable homes. It was also in the interests of the interested party that it should proceed, and that party bore no responsibility for the breach which has occurred. The balance of interests pointed strongly to the refusal of the relief sought: Walton v The Scottish Ministers [2012] UKSC 44 considered. (4) Furthermore, the court rejected the argument that the defendants had failed properly to deal with the relevant development policies. The defendants had clearly been entitled to take the view that the better quality provision in respect of open space would be achieved under the development proposal in a constrained urban environment. Moreover, the planning officer’s report gave a very full explanation and a fair overview of the planning background and the relevant facts of the case on the basis of which the defendants had been fully entitled to come to the conclusion they did on the planning merits: North Wiltshire District Council v Secretary of State for the Environment [1992] JPL 955 considered. Jenny Wigley (instructed by Richard Buxton Solicitors) appeared for the claimant; Sasha White QC (instructed by Harrow London Borough Council) appeared for the defendants; Martin Edwards (instructed by Winckworth Sherwood) appeared for the interested party. Eileen O’Grady, barrister