Smyth v Secretary of State for Communities and Local Government

Town and country planning – Planning permission – Environmental impact assessment – Defendant secretary of state granting planning permission for residential development – Claimant resident seeking order quashing defendant’s decision – Whether defendant erring in law by failing to carry out environmental impact assessment – Application dismissed A developer (the second interested party) had an option to purchase 1.73 hectares of undeveloped agricultural land in Exminster, Devon. It applied to the local authority (the first interested party) for planning permission to construct 65 dwellings with associated highways and parking on the site. The planning application was accompanied by an ecological assessment. The planning committee refused planning permission and the second interested party appealed. The claimant, as representative of an unincorporated association of residents objected to the application. An inspector appointed by the defendant secretary of state allowed that appeal and granted planning permission subject to conditions and an undertaking under section 106 of the Town and Country Planning Act 1990. Having considered the relevant planning policies, the inspector concluded that the proposed development was not significant in terms of the amount of agricultural land involved, Moreover, the first interested party had failed to achieve its annual housing land supply requirement and the proposed development would not be significantly harmful to the character and appearance of the area. The claimant applied under section 288 of the 1990 Act for an order quashing the decision. It contended that the defendant had acted unlawfully in granting planning permission without carrying out an environmental impact assessment (EIA) of the proposed development, following the issue of a screening opinion. The inspector had erred in concluding that there had been no real possibility that the development would have an appreciable adverse effect on the integrity of nearby European protected sites for wildlife; and in relying on a unilateral planning obligation under section 106 of the 1990 Act to pay a conservation contribution calculated using a one-size-fits-all formula. Furthermore, the inspector had improperly construed and applied the relevant policies as regards sustainable development, versatile land and housing land supply; and had given inadequate reasons for his decision regarding harm to the identity of a nearby village. Held: The application was dismissed.(1) The judgment to be exercised in carrying out a scoping opinion by the planning authority was focussed on the circumstances of the case and the scoping exercise was one of judgment or opinion and not one of hard edged fact to which there was only one answer. The court did not need to embark on its own merits review in those circumstances. The issue was not the validity of the screening opinion as such, but whether a flawed screening opinion led to failure to conduct an EIA and undermined the legality of the planning process. In the present case, when the screening opinion was read with the letter requesting it, the reasons given, although briefly expressed, were adequate so the decision could not be found to be Wednesbury unreasonable. There had been sufficient evidence for the first interested party to come to its conclusion. It followed that the screening opinion was not legally flawed: R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2004] 2 P & CR 14; [2003] PLSCS 227, Renfree v Mageean [2011] EWCA Civ 863 and R (on the application of Berky) v Newport City Council [2012] EWCA Civ 378; [2012] PLSCS 79 applied; Gregory v Welsh Ministers [2013] EWHC 63 (Admin); [2013] PLSCS 29 and Champion v North Norfolk District Council [2013] EWCA Civ 1657; [2013] PLSCS 317 distinguished. (2) The planning application had been accompanied by an ecological assessment and the inspector had been satisfied, as had all authorities, that with mitigation measures, there would be no significant effect on wildlife. The analysis of disturbance conducted had been adequate for that assessment to have been made. It had been sufficiently certain to comply with EU requirements in the view of all who had appraised the situation. On the evidence, that conclusion could not be faulted. It followed that the defendant had adopted the correct approach in accordance with EU law to the issue of appropriate agreement under section 106: Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij C–127/02 [2004] ECR I–7405 considered. (3) As regards the section 106 undertaking, it was a matter for the inspector’s judgment whether the information before him was sufficiently transparent and met the domestic statutory tests. The inspector had adopted an approach on a per capita basis, but applicable to the appeal characteristics. That approach had satisfied him as providing sufficient information for his purposes to be able to judge whether the proffered unilateral undertaking had met the statutory tests and had been entitled to conclude that it had, applying the law and taking into account the evidence before him. In all the circumstances, that had been a perfectly rational and reasonable finding. (4) The presumption in favour of sustainable development was disapplied where an appropriate assessment was being considered, planned or determined. The inspector had been through that exercise and concluded that an appropriate assessment was not required. He had been the competent authority for that purpose and had been right to apply the presumption in favour of sustainable development. His decision that the proposed development had not been significant in terms of the amount of agricultural land that would be taken was a matter entirely for his judgment. Further, as the inspector had found that the authority had failed to achieve its annual requirement every year from 2001, he had been entitled to conclude that it had accrued a significant shortfall and to use that as a significant factor in applying the planning balance which he had later done as part of his overall balancing exercise. (5) Harm to the identity of the village had not been part of the first interested party’s reasons for refusal of permission nor was it a main issue identified by the inspector in his decision letter. The inspector had found that the proposed development would not be significantly harmful to the character and appearance of the area which was a matter of judgment open to him and had been sufficiently explained in the context of the way that the claimant had put her case. Gregory Jones QC and David Graham (instructed by Leigh Day) appeared for the claimant; James Maurici QC (instructed by the Treasury Solicitor) appeared for the defendant; Rhodri Price Lewis QC (instructed by Ashfords LLP) appeared for the third interested parties; The second interested parties did not appear and were not represented. Eileen O’Grady, barrister