Secretary of State’s screening direction invalidated planning permission

The prohibition against granting planning permission for the kind of development which has to be subject to an environmental impact assessment, without consideration of the required environmental information, is contained within Regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“The 2011 Regulations”):

“3(4) the relevant planning authority or the Secretary of State or an Inspector shall not grant planning permission or subsequent consent pursuant to an application to which this Regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”

In the High Court case of Roskilly, R (On the Application Of) v Cornwall Council And Others [2015] the Council had hastily commissioned, and adopted, a screening opinion which had concluded that there were not likely to be significant environmental effects such as to warrant the preparation of an environmental impact assessment. The claimant disagreed and soon after the publication of the officer’s report, but prior to the committee meeting, their solicitors wrote to the National Planning Casework Unit urgently requesting a screening direction from the Secretary of State in respect of the proposed development.

The Secretary of State made a screening direction but the planning committee had resolved to grant the planning permission.

The issue was whether Regulation 3(4)’s prohibition of grant of planning permission applies where a development has been negatively screened for an environmental impact assessment requirement by a planning authority, but is susceptible to a screening direction by the Secretary of State at a time when planning permission is granted. Was the planning permission rendered unlawful by the issuing of that positive screening direction after the planning consent had been issued?

The court said the planning permission was rendered unlawful by the subsequent issuing of the Secretary of State’s positive screening direction.

The prohibition contained in 2011 Regulation 3(4) is a matter for determination by the court on the basis of the material available at the time when the court comes to consider that question. Also the 2011 Regulations did not suggest that the Secretary of State’s jurisdiction to direct that the development is environmental impact assessment development, under 2011 Regulation 4(3), comes to an end on the grant of planning permission. Thirdly the Master Legislation, EU Directive 2011/92/EU, as amended by Directive 2014/52/EU, and the 2011 Regulations, prescribed a process whereby whereby an application to the Secretary of State was to arrive at a definitive determination as to whether or not a project was in truth development required to be subject to an environmental impact assessment and this could not be excluded.

Had it been necessary to do so the court would also have been minded to conclude, on Wednesbury principles, that no reasonable planning authority, knowing that there was an outstanding request of the Secretary of State to make a determination on a screening direction, at the time when they formed a resolution to grant planning permission, would proceed to grant planning permission without knowing the outcome of that screening direction process.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.