R (on the application of Goodman and another) v Lewisham London Borough Council and another

Environmental impact assessment (EIA) — Infrastructure — Respondent council granting planning permission for storage and distribution facility without requiring EIA having decided that such facilities not constituting infrastructure — Whether council wrongly applying para 10(b) of Schedule 2 to Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 — Appeal allowed The appellants lived near to a site upon which the interested party wished to construct a storage and distribution facility, with 24-hour access, for business and private customers. When considering the planning application for that development, the respondent council were required to consider whether it fell within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. The regulations required an environmental impact assessment (EIA) to be undertaken for developments falling within Schedule 2 that were likely to have significant effects upon the environment by virtue of their nature, size or location. The relevant part of Schedule 2 was para 10, which covered “infrastructure projects” and included, in subpara (b), “urban development projects”. The council took the view that the proposals did not constitute Schedule 2 development, because Schedule 2 was concerned with uses that could significantly affect the environment, and a storage and distribution use did not fall into that category. They went on to grant planning permission without requiring an EIA. The appellants challenged that decision, contending that the failure to require an EIA rendered it ultra vires. The judge dismissed the claim, holding that it had not been unreasonable for the council to find that the proposals did not constitute an urban development project falling within the description of infrastructure project. The appellants appealed. Held: The appeal was allowed. The judge had been wrong only to apply the test of Wednesbury unreasonableness to the council’s decision. Although the expressions “infrastructure project” and “urban development project” were wide, and to some extent obscure, and a good deal of legitimate disagreement would be involved in applying them to the facts of any given case, a determination by a local authority was not simply a finding of fact or a discretionary judgment. If an authority’s understanding of the meaning of those expressions was wrong as a matter of law, the courts would correct them. It could not be right, as a matter of law, that “storage and distribution”, as a category, did not fall within para 10(b), however large and extensive the operation. It was not the case that a storage and distribution facility, particularly one that provided services to business and the community at large, and which was not merely a private operation, could never reasonably be regarded as part of the infrastructure as understood in the regulations. The view taken by the council as to the reach of para 10(b) was outside the range of reasonable responses that was open to them. The grant of planning permission would therefore be quashed and remitted to them for reconsideration in accordance with the procedural requirements of the regulations. Richard Harwood (instructed by Richard Buxton & Co, of Cambridge) appeared for the appellants; James Maurici (instructed by the solicitor to Lewisham London Borough Council) appeared for the respondents; Keith Lindblom QC and Meyric Lewis (instructed by Park Nelson appeared for the interested party. Sally Dobson, barrister