EIA trumping

John Pugh-Smith looks at the consequences when a planning decision was made while the Secretary of State’s EIA screening direction process was still pending.

In R (on the application of Silke Roskilly) v Cornwall Council & Shire Oak Quarries Limited [2015] EWHC 3711 (Admin) Mr Justice Dove was faced with the submission that an impugned decision could not be rendered unlawful as a result of a subsequent act; but such is the hard-edged nature of regn 3(4) of the Town and Country Planning (Environment Impact Assessment) Regulations 2011, the prohibition on granting permission for EIA development without environmental information, that that public law principle was not engaged.

The background to the case was the re-opening of a dormant, gabbro quarry within the Lizard Peninsula’s Area of Outstanding Natural Beauty on the Lizard peninsular following a successful ROMPS review. The quarry’s new owner, the interested party, had applied for permission to erect buildings and facilities to provide the necessary infrastructure for the quarry operations to recommence. The claimant, a local resident and proprietor of a nearby organic farm and business, had registered objections to the planning application including the need for it to be screened for EIA purposes as it was proposed development within an AONB.

The council issued a negative screening opinion the following day and then took the application to committee shortly thereafter. On the same day as the meeting the claimant, through her solicitors, urgently requested a screening direction from the Secretary of State and notified the council to such effect. The members were advised that such a request had been made but nonetheless resolved to grant consent. The decision notice was issued the following day. Nearly two months later the Secretary of State published a positive screening direction stating that the proposal would be likely to have significant effects on the environment and that the risk of significant harm justified an EIA. Judicial review proceedings were then issued two weeks later but well outside the required period.

The essence of the challenge was that  in the light of the Secretary of State’s screening direction that the proposal was EIA development, the grant of consent was unlawful under regn.3(4) of the EIA Regulations 2011 because it was not accompanied by environmental information.

Secondly, it had been irrational for the council to have proceeded to grant planning permission without awaiting the outcome of the screening direction process. Dealing with the main point, the judge held that the regn.3(4) prohibition was a matter for the court’s determination on the basis of the material available when it considered that question. Here, the material before the court included an unchallenged decision of the Secretary of State to issue a direction that the proposal was EIA development. The Regulations did not suggest that the question whether a development was EIA development, and the Secretary of State’s jurisdiction under regn.4(3) to so direct came to an end on the grant of planning permission.

Whilst the local authority was not precluded from granting planning permission in such circumstances it ran the risk that if that direction was positive it would then have granted a planning consent which was infected with illegality, as was the case here. The judge also remarked that he would also have been minded to conclude that no reasonable planning authority, knowing when they formed a resolution to grant planning permission that there was an outstanding request of the Secretary of State to make a determination on a screening direction, would proceed to grant planning permission without knowing the outcome of that screening direction process. Accordingly, the permission was quashed.

While the facts are a little unusual it is now clear that where both a third party and the Secretary of State become involved prior to a planning determination, it is advisable always to allow EIA procedures to run their full course, however desirous it may be to secure an early planning permission. Given that the Secretary of State is under no timing restrictions, unlike a local authority, that could be many months. So, the Roskilly case now sits as another and telling reminder amongst EIA jurisprudence that screening considerations should never be treated lightly, and, that unreasonableness can still be a successful ground to challenge that process.

John Pugh-Smith is a barrister at 39 Essex Chambers. Instructed by Stephens Scown LLP, he acted on behalf of the claimant, Mrs Silke Roskilly. John can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..