The court confirms a number of principles relating to environmental impact assessment of projects requiring planning permission

Council Directive 85/337/EEC, as subsequently amended and codified, is largely transposed into domestic law in England by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”). These define the circumstances, and establish the procedures, for carrying out environmental impact assessment for projects requiring planning permission. In R (on the application of Gibson) v Harrow District Council [2013] EWHC 3449 the claimant sought judicial review of a decision made on 10 February 2012 by the local planning authority (“LPA”) to grant outline planning permission for 27 residential units on 1.4ha of open land. (The developer had earlier failed on appeal to secure planning permission for the development. The successful planning application was a modified application, taking into account objections identified by the planning inspector, though the development proposals were the same in terms of physical dimensions and characteristics.) The LPA had issued a negative screening opinion on 15 July 2010 in relation to the earlier unsuccessful planning application. It did not issue any further screening opinion, and in relation to the subsequent successful planning application it failed to place that screening opinion in Part I of the register it was required to maintain under section 69 of the Town and Country Planning Act 1990, in accordance with regulation 23 of the Regulations. The following principles can be extracted from the court’s judgment. (1) Although a screening opinion may be challenged directly, it will still be possible to allege that it is defective through a challenge to the resulting planning permission without risk of the challenge being declared out of time. (For earlier authority see R (on the application of Catt) v Brighton and Hove City Council [2007] EWCA Civ 298.) (2) Where a screening opinion has already been issued in respect of a particular development, as a matter of interpretation regulation 7 of the regulations does not oblige a LPA to issue a further screening opinion on receipt of a later planning application for an identical development. (3) The court retains a discretion not to quash the relevant decision where a breach of the regulations has caused no significant prejudice to the claimant. It is open to the court to weigh prejudice to public or private interests, if a decision is set aside, against the prejudice suffered by the public and the person complaining against the breach. (In that respect, see generally Walton v The Scottish Ministers [2012] UKSC 44.) John Martin