Minister defeats legal action over EIA decision on development at old sports complex

The Secretary of State for Communities and Local Government has successfully defended a legal challenge to his decision that proposed development at a disused sports complex was not EIA (environmental impact assessment) development.

In Kenyon, R (On the Application Of) v Wakefield Council & Ors [2018] EWHC 3485 (Admin) the claimant applied for judicial review of a direction by the Secretary of State, made on 16 December 2016, under regulation 4(3) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 that proposed development at Hemsworth Sports Complex in Pontefract, was not EIA development within the meaning of regulation 2 of the 2011 Regulations, and that an environmental statement to assess the environmental effects of the development was therefore not required.

The claimant was a local resident who is concerned by an application by a developer to the council for outline planning permission for a development of 150 homes at the site. These include concerns about a possible increase in air pollution levels locally, and also that the land is partially contaminated because the site (a former brickworks quarry) was used for landfill, and other purposes.

The application for outline planning permission was made in January 2008 and it was granted by the council on 24 November 2010. It was quashed by the High Court on 14 February 2012, because of the failure to carry out an EIA screening opinion. On 20 May 2013, the council issued a negative EIA screening opinion and, on 5 September 2013, the council again resolved to grant outline planning permission. On 31 March 2016, the council granted a second permission, although on 1 July 2016, in a second claim for judicial review, the second grant of outline planning permission was quashed by consent.

On 5 September 2016, the claimant applied to the Secretary of State for a screening direction, under regulation 4(8) of the 2011 Regulations. His solicitor provided lengthy submissions and evidence in support of the application.

On 21 November 2016, the council again issued a negative screening opinion. On 16 December 2016, the Secretary of State made a screening direction, concluding that the proposal met the applicable criteria for an urban development project under paragraph 10(b) of schedule 2 to the 2011 Regulations, but it was not EIA development because it was not likely to have significant effects on the environment, applying the criteria in schedule 3.

The claimant challenged the Secretary of State’s decision on the following grounds:

i) The defendant minister failed properly to consider the cumulative environmental effects of the proposal in his screening direction;

ii) The defendant placed undue reliance upon conditions in an attempt to remedy the adverse environmental effects which were likely to arise from the proposal;

iii) The defendant failed to consider other relevant environmental matters relevant to the proposal, including loss of woodland, open space and recreation areas; flood risk; and the increase in greenhouse gas emissions generated by the new homes.

On 15 August 2018, Sir Ross Cranston, sitting as a High Court Judge, granted the claimant permission to apply for judicial review on ground 1 to the "limited extent indicated below", which related only to air quality. The judge refused permission on grounds 2 and 3.

The claimant did not challenge the judge's decision on ground 1, but made a renewed application for permission on grounds 2 and 3, which was listed to be heard on the same occasion as the substantive hearing. However, the claimant abandoned ground 3 at the commencement of the hearing.

Mrs Justice Lang – who considered ground 2 on a rolled-up basis, together with ground 1 – dismissed the claim.

On ground 1, the Planning Court judge said: “The claimant's submissions that the defendant failed properly to consider pollution and air quality and, failed adequately to assess cumulative effect, were based on an unduly forensic and nit-picking reading of the assessments. It is well-established that planning decision letters should be read fairly and in good faith, and as a whole, in a straightforward manner, without excessive legalism or criticism…..In my view, screening assessments should be read in the same manner.”

She added: “On a fair reading, all aspects of air quality and cumulative impact were considered and taken into account in reaching the overall conclusion that there were no likely significant effects on the environment arising from the proposed development, and so an EIA was not required.”

Permission to apply for judicial review on ground 2 was also refused, and the claim was dismissed.