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Cite as: [2000] EWHC Admin 278

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FERNBACK; RODNEY LEE BERGER; ADRIAN MARTIN JACOBS; VALERIE JUNE STRACHAN and STEPHEN YIN CHING WONG v. LONDON BOROUGH OF HARROW [2000] EWHC Admin 278 (11th April, 2000)

Case No: CO/3942/2000

Neutral Citation Number: [2001] EWHC Admin 278

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 11th April 2000

B e f o r e :

THE HONOURABLE MR JUSTICE RICHARDS

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(1) ELAINE MELANIE FERNBACK

(2) RODNEY LEE BERGER

(3) ADRIAN MARTIN JACOBS

(4) VALERIE JUNE STRACHAN

(5) STEPHEN YIN CHING WONG

Claimants


- and -



LONDON BOROUGH OF HARROW

Defendant

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr Eian Caws (instructed by Mishcon de Reya for the Claimants)

Mr David Mole QC, Mr Paul Brown and Mr Paul Greatorex (instructed by Harrow Legal Services for the Defendant)

Mr Matthew Horton QC and Mr Reuben Taylor (instructed by Turbervilles for the Interested Party, Laing Homes Limited)

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Judgment

As Approved by the Court

Crown Copyright ©

MR JUSTICE RICHARDS:

1. The claimants challenge a decision made by the Planning Committee of the defendant council on 15 September 2000 to grant planning permission (subject to the completion of a section 106 agreement) for a residential development at RAF Stanmore Park, Uxbridge Road, Stanmore. The application site, which covers some 14 hectares, was formerly used for the purposes of the RAF. The proposed development includes 411 dwellings in houses and flats, community facilities, access, parking and public open space. The developer is Laing Homes (North London) Limited.

2. The claim raises three main issues: (1) whether the council erred in its consideration of the traffic impact of the development, (2) whether there was a breach of the regulations concerning environmental impact assessments and (3) whether the decision was procedurally unfair.

Brief factual history

3. In 1999 Laing Homes sought a screening opinion from the council pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 as to whether the proposed development would require an EIA. On 13 September 1999 the council, through its Chief Planning Officer acting under delegated powers, gave a screening opinion to the effect that the proposal was not considered to require an EIA. The reasons for that opinion included:

"1. The proposal involves the redevelopment of a site that contains a substantial amount of building and hard standing and would not be on a significantly greater scale than the previous use. In addition, the estimated number of dwellings will be significantly lower than the indicative guideline for "urbanisation" set out in DETR Circular 02/99.

2. The Local Planning Authority will require a Transport Impact Assessment to be submitted at the planning application stage. This should assess the predicted impact of the transportation demands of the development and include measures to mitigate any adverse effect."

4. An application for planning permission, at that time relating to 390 dwellings, was submitted on 3 November 1999. It was soon followed by a transportation impact assessment prepared by Singleton Clamp & Partners for the developer. The application was subsequently amended to increase the number of dwellings to 411.

5. On 21 June 2000 the Planning Committee met to consider the application as amended. The committee had before them a detailed report from the Chief Planning Officer recommending that permission be granted subject to the completion of a legal agreement. A passage in that report is at the heart of the argument on the first main issue. I shall set it out when I come to that issue. The committee deferred a decision on the application for a number of reasons, including:

"An officer report to be prepared which provides an overview of Traffic Survey and Traffic Impact Data and its implications taking into account current development proposals in Stanmore area."

6. Pursuant to that request a report was prepared by a firm of traffic consultants, Colin Buchanan and Partners, at some point between June and early September. The report ("the CBP report") concluded that the proposed development would be difficult to refuse on traffic grounds.

7. The Planning Committee met again to consider the application on 6 September 2000. It had before it a further report from the Chief Planning Officer. That report provided an overview of traffic survey and traffic impact data, including a summary of the CBP report. After detailed discussion it was agreed to adjourn the meeting and to reconvene on 14 September.

8. At the meeting on 14 September, which ran into the early hours of 15 September, the members of the committee were addressed by the Chief Planning Officer on his report and by the Transportation Manager. The officers were asked detailed questions. The application was then debated. A proposal to refuse planning permission was lost and the committee ultimately resolved that permission be granted subject to the completion of a legal agreement. That is the decision which is now challenged.

9. The application generated a great deal of local opposition and the committee's hearings were attended by a large number of objectors. There was considerable dissatisfaction, too, about the committee's procedures. I do not think it necessary, however, to set out more about the background. A number of points of complaint have fallen away, leaving the three main issues that I have already mentioned. No useful purpose will be served by going over more of the ground than is necessary for my decision on the remaining issues.

10. The claimants themselves all reside near the application site and claim that they will be affected by the proposed development and that it will adversely affect the value of their properties. They are concerned in particular about the impact that the proposed development will have as a result of traffic generation, especially having regard to the cumulative effect of this development and other developments for which permission has previously been granted. Although a question has been raised about the standing of some of the claimants, I am satisfied that they all have a sufficient interest to advance the grounds of challenge still relied on. (Different considerations might have applied if a challenge based on the Human Rights Act 1998 had been pursued.)

11. The claim was lodged on 26 October 2000 and permission was granted on 8 December 2000. The substantive hearing took place before me on 26 and 27 March 2001. The week before the hearing I heard an application by the claimants for permission to rely on additional witness statements and for an order requiring a number of witnesses (for the defendant as well as the claimants) to attend for cross-examination at the hearing. For reasons that I gave at the time, I granted only limited permission for further witness statements to be adduced and I refused the application as to cross-examination.

12. On the morning of the hearing the defendant sought permission to rely on three further witness statements. I reserved a decision on that application whilst admitting the statements de bene esse for the purposes of the hearing. In the event Mr Caws raised no objection to the further statements being admitted and indeed relied on them for the purposes of his argument. In the circumstances I am satisfied that permission should be given for those statements to be admitted and I have taken them into account accordingly in reaching my decision on the substantive issues.

First issue: traffic

13. The essence of Mr Caws's contention under this heading is that the proposed development will give rise to substantial traffic congestion in Stanmore town centre but the members of the committee, by reason of what they were told in the Chief Planning Officer's reports and by the Transportation Manager at the meeting of 14 September, acted under the belief that traffic congestion could not be a legally valid reason for opposing the application. It is submitted that such an approach was obviously flawed, whether the matter is analysed in terms of irrationality or as a misdirection as to the effect of government policy.

14. The argument is rooted first in a passage in the report prepared for the meeting on 21 June 2000. That report, having set out the background, contains a lengthy "appraisal" section. The section commences with a strategic overview of government guidance. The claimants make no complaint of that summary, but it is necessary to describe it since it forms the background to what comes next. The report makes reference to:

i) PPG3: Housing. The report states that in order to accord with PPG3 the proposals must, inter alia, ensure that the development is accessible by a range of non-car modes of transport. It states that in terms of transport planning, there has been a significant change in emphasis away from the former "predict and provide" approach to a planned, integrated and managed system.

ii) PPG13: Transport. The report states that the application should be assessed against the PPG13 policies and that, in planning for less travel, the aims of PPG13 are to influence the location of different types of development relative to transport provision and to foster forms of development which encourage walking, cycling and public transport use. To achieve those aims, the main thrust of the PPG is to locate development within urban areas where there are local facilities which would reduce the need to travel and where alternative modes of travel to the car are available. In addition, developments should be served by an infrastructure which maintains an improved choice by increasing the relative advantage of means of travel other than the car. The maximum amount of housing should be allocated to existing urban areas with a particular priority placed on the re-use or conversion of existing sites, and higher density residential developments should be concentrated near public transport centres or along corridors well served by public transport and close to local facilities. The report refers to the public consultation draft revision of PPG13 as reinforcing those considerations.

iii) RPG3. The report states that the relevant strategic objective for transport in London is to promote greater use of less polluting modes of transport, subject to the need to maintain competitiveness and safety. Boroughs should allocate sites which would generate less total travel and promote use of public transport and other non-car modes, creating greater opportunities for activity based on forms of transport other than the car.

15. After considering a number of other specific topics, including access and transport and parking, the report comes back to the "wider traffic impact and transport implications". It repeats that the emphasis has changed to a planned, integrated and managed approach whereby the development is assessed against its ability to reduce the need to travel (location) and the extent to which the relative advantage of non-car modes of travel have been increased (promote choice). With regard to location, it states that the site is well located and it gives supporting details. With regard to the promotion of choice of mode of travel, it states that a comprehensive package of complementary transport measures has been included in the design and legal agreement, and again it goes on to consider further relevant details.

16. The report then states that an important consideration regarding the transportation impact of the development is the potential for problems to be created by private car trip generation. It refers to the transport impact assessment submitted by the developer, stating that the predicted trip-rate, although lower than rates typically used by the council in the past, is considered to be acceptable in the circumstances. The local distributor and access roads can satisfactorily accommodate the projected increases in terms of highway.

17. There follow two paragraphs which are central to the present issue:

"In terms of capacity limitations and the potential for increased congestion further afield on the road network, the critical road is Church Road and through Stanmore Broadway where the existing traffic signal junctions will be close to capacity in the peak hours, taking into account the predicted effects of the Sainsburys development. It is accepted that, in Stanmore Town Centre the predicted additional traffic would exacerbate the existing situation and increase congestion and delays. However, this is not a reason to oppose the applications, because the only way to create more vehicular traffic capacity is to use up all the available roadspace to widen the carriageways at the expense of footways/cyclists and/or to give less priority to pedestrians at signalised crossings. These options would be contrary to current Government policy, which is not to increase road traffic capacity and to alter the balance of priority of use of the available roadspace in the favour of pedestrians and cyclists. In addition, a shopping centre requires generous footways to provide a safe and attractive environment.

Weighed against the disadvantages of additional congestion is the requirement in Planning Guidance to make the maximum use of urban land, especially "brownfield" sites for redevelopment and to make development more sustainable. Government thinking is to meet the need for more housing and improve the sustainability of development by locating it in urban areas where there are more travel choices available and where there is less overall need for travel. Developers are required to do what is reasonable to improve choice and the package of proposals in this application is considered to meet that requirement. The combined effect of congestion on the road network and measures to encourage modes of travel, together with progressive parking restraint measures at trip destinations and other wider fiscal and traffic management transport policies, will influence the trip generation potential of the development. It is worth noting that the development includes a significant proportion of studio/workshops for home-working, flats and affordable housing which would house people who are less likely to use private cars to travel, particularly during the peak hours" (emphasis added).

18. It is the first paragraph upon which Mr Caws particularly relies, especially the passage that I have emphasised. He submits that the officer's reasoning is in effect: (a) the existing situation in respect of traffic congestion and delays is bad, (b) the predicted additional traffic caused by the development would exacerbate that already bad situation, (c) the current situation cannot be improved (because one cannot create additional traffic capacity because of the constraints of policy) and (d) because one cannot create additional traffic capacity, the council cannot oppose development that would worsen congestion and delay. He says that the officer is right that an increase in the vehicular capacity would be contrary to policy; but that is not what is complained about. The complaint is that the officer tells the council that, as a result, the increase in the traffic problem is not a reason to oppose the application.

19. Mr Caws submits that one gets a similar problem with the CBP report. That report contains a section on government policy which starts with an acceptable summary of the policy itself and then goes on:

"5.3.1 The development of the Stanmore Park site meets the above criteria in that it is close to a town centre, Stanmore, and is previously developed land. The applicant could argue that a lower generation rate should be used because of its closeness to the town centre, and that there will be a higher usage of public transport. This would give rise to a lesser impact than has been investigated above.

5.3.2 A refusal of this application purely on traffic grounds because of its impact upon Stanmore Town Centre is unlikely to be sustainable at appeal. However, to ensure that the development is sustainable with a low generator of traffic during all periods of the day, negotiations to improve the use of walking and cycling as a mode of transport for the residents will need to be undertaken. Improving the accessibility of public transport for the residents will also need to be considered. This could include the diversion of a bus through the estate if parts of it are more than 400 metres from a bus stop on the surrounding roads."

20. That is picked up in the conclusions section, which states that the development will add substantial amounts of traffic to the local network, to the detriment of the junctions within the town centre which will be further overloaded during peak periods of traffic movement, and that the practical capacity of the Uxbridge Road will be exceeded during evening peak hours. But the section ends:

"6.1.11 The development will be difficult to refuse on traffic grounds in the light of the recent government policy papers. The development will need to be designed so that it benefits walkers and cyclists and provides good accessibility to a possibly improved public transport system on the surrounding roads."

21. Thus, submits Mr Caws, the consultants are saying that it would be difficult to refuse permission even though the effect would be to overload the town with traffic. That is not a proper conclusion to be drawn from the government policy. The report fails to make clear that it is open to the council to weigh the benefits and disadvantages of the proposal.

22. The CBP report was not included with the agenda papers for the meeting on 6 and 14 September, but would have been available in the members' library. The report was, however, summarised in the further report of the Chief Planning Officer for the meeting on 6 September. Section 3.2 of his further report contains an overview of traffic survey and traffic impact data. That starts with an examination of the traffic impact assessment originally provided by the developer (the Singleton Clamp & Partners assessment). The base data are compared with those from other surveys. They are considered to be robust and safe for use when assessing the impact of additional traffic. The report goes on to state:

"3.2.3 The base data does not of course include any traffic which will be generated by the Sainsburys store currently under construction. However, the performance of the new site access junction onto Uxbridge Road has been assessed by the Stanmore Park consultants with the predicted Sainsburys traffic added to the base data and was found to be acceptable. It is predicted that the additional traffic generated by the residential development will increase congestion and delays. The report to the meeting on 21st June set out the reasons why this situation is not a justification to oppose the application" (emphasis added).

23. There follows a summary of the CBP report. In paragraph 3.2.7 reference is made to the suggestion that a high trip rate should have been used for certain purposes, as to which it is said that the approach of the developer's consultants was considered acceptable for the reasons given in the 21 June report. It is then stated:

"3.2.8 CBP's report also addresses the Government policy issues. In common with the application report to the meeting of 21st June it states that a refusal of the Stanmore Park application purely on traffic grounds because of its impact upon Stanmore Town Centre, is unlikely to be sustainable at appeal. It goes on to emphasise the need to ensure good accessibility to alternative modes. Members will note that the heads of agreement include a package of measures designed to bring advantages to alternative modes as well as funds for traffic calming in existing streets, if necessary."

24. Mr Caws contends that the final sentence of paragraph 3.2.3 of the Chief Planning Officer's further report repeats, by its reference back, the erroneous reasoning contained in the 21 June report. He further contends that paragraph 3.2.8 repeats the error in the CBP report, in suggesting that the application could not be refused on traffic grounds.

25. A similar point is made in relation to what the Transportation Manager told the Committee on 14 September, as recorded in the minutes of the meeting:

"The Transportation Manager referred to the likely impact of the traffic generated by the development on surrounding roads, combined with the impact of all the other recently approved major developments in the Stanmore area. He referred in detail to the results of the developer's Traffic Impact Assessment which had been undertaken by consultants, Singleton, Clamp and Partners, as well as the findings of the independent Consultant, Colin Buchanan & Partners, whom the council had recruited to report with an overview of the Transport Assessments for all the recently approved major developments in the Stanmore area. He agreed that the predicted additional traffic would exacerbate the existing situation and increase congestion and delays. However, he referred to Central Government guidance on this matter. He also pointed out that the Colin Buchanan & Partners report had stated that a refusal of the Stanmore Park application purely on traffic grounds because of its impact upon Stanmore Centre was unlikely to be sustained at appeal.

Members then asked a number of detailed questions to officers particularly with regard to the traffic impact of the proposed development and the impact this would have on the surrounding road network. The Transportation Manager, in response to the questions accepted that the likelihood was that congestion would get worse and that some traffic would seek alternative routes. However, he emphasised again that this did not constitute a valid reason for refusal" (emphasis added).

26. Mr Caws highlights the expression "this did not constitute a valid reason for refusal" and submits that the committee members were thereby led to understand that, because of Government policy, the increase in traffic congestion could not amount to a valid objection to the application. He submits that that is reinforced by a later passage in the minutes, which relates to the debate on the motion that the application be refused:

"A number of members spoke in support of this motion. Other Members however did not support the proposal. Reference was made to Central Government planning guidance encouraging higher housing density and more efficient use of land and changing demography with increasing numbers of smaller households. The site was situated close to the Stanmore Town Centre and to public facilities. It was recognised that there would be additional traffic generation and increased congestion but this was not a valid planning ground for refusing the application" (emphasis added).

So too the final remarks of the Chair:

"In terms of the proposal, he referred to PPG3 and PPG13 which the proposals complied with. A traffic reason for refusal could not be sustained"

27. The whole assessment is therefore said to have proceeded on the basis of an erroneous understanding of the effect of government policy, with the members of the committee believing that it would not be legally open to them, in the light of government policy, to refuse the application or e.g. to require a lower density of housing on the grounds of the traffic congestion that the development would cause. There was simply no suggestion that it was a matter of balancing the advantages of the development against the disadvantages arising out of traffic congestion and any other disadvantages

28. In my judgment the claimants' case on this issue has been erected on an unduly narrow approach towards a few sentences in the documents before me. It is important not to read a planning officer's report or minutes of the meeting of a planning committee as if they were a statute or a judgment of a court. It is necessary to look at the overall effect of what is said and to examine individual sentences in their wider context and with a degree of benevolence rather than subjecting them to minute textual scrutiny.

29. I accept that, read literally and without looking at the wider context, the key sentence in the first report of the Chief Planning Officer ("However, this is not a reason to oppose the applications ...") appears to be saying that traffic congestion is not a ground on which planning permission can be refused, because it would be contrary to government policy for such congestion to be reduced by road-widening and such congestion is therefore unavoidable. Such reasoning would not only be plainly wrong; it would also be a very odd piece of reasoning for a planning officer to advance. If the passage is read in its wider context, however, it can be seen to be merely a step towards a broader point, and both the oddity and the error disappear. The advice given is that the traffic congestion is unavoidable because road-widening would be contrary to government policy, but that when the traffic congestion is weighed against other factors it would not provide a sufficient ground for refusing permission. The latter consideration is set out clearly in the next paragraph, which brings in the balancing exercise and advises that the balance comes down against the refusal of permission on traffic grounds. Read in that way, the advice given to the committee is sensible and legally sound.

30. I have no real doubt that, despite the infelicitous wording of the passage relied on by the claimants, the committee would have understood the report in the way I have indicated. The fact that the committee, in adjourning a decision, requested a further traffic report shows that they regarded this as something capable of being a ground for refusal. The exercise would otherwise have been entirely pointless.

31. Exactly the same approach is to be seen in the CBP report. Nothing in that report could sensibly be taken to suggest that, by reason of government policy, it would not be legally open to the committee to take traffic congestion into account as a factor weighing against the grant of permission. What the report says is that a refusal based on traffic congestion is "unlikely to be sustainable" and that it would be "difficult" to refuse an application on that ground. I accept the submission for the defendant that what meant was that if the committee were to refuse permission on that ground, it would have difficulty is sustaining the refusal on appeal - not because it was a legally impermissible basis for refusal, but because on the facts of the case, having regard to the competing considerations, it was unlikely to be an adequate ground.

32. The Chief Planning Officer's report for the meeting on 6 September does not add materially to the argument. The reference back to the earlier report ("not a justification ...") is consistent with my construction of that report. The summary of the CBP report uses the language of that report ("unlikely to be sustainable") and engages in the kind of detailed discussion appropriate for the balancing exercise to which the point is addressed.

33. At the meeting of the committee on 14 September the Transportation Manager provided an exposition in accordance with the approach in the reports. He referred to the CBP report as stating that refusal on traffic grounds was unlikely to be sustainable "at appeal", which accords entirely with the meaning that I have attributed to the report. He plainly meant the same thing when he said that the traffic congestion did not constitute "a valid reason for refusal". To treat "not ... valid" as denoting that the reason was not open to the committee as a matter of law is to distort the overall effect of the advice. What members themselves are reported to have said in the ensuing discussion about it being "not a valid planning ground" must be read in the same light. It is to be noted that the Chair, in his concluding remarks, returned to the language of the CBP report that a refusal on a traffic ground "could not be sustained".

34. Looking at the debate as a whole and having regard to the discussion of traffic matters and other material considerations, I think it wholly unrealistic to suggest that the members of the committee were misled into an obviously erroneous approach towards the traffic issue. The proposition that they reached their decision on the basis of advice that, by reason of government policy, traffic could not be a ground of refusal is not borne out by the evidence. What the evidence shows is that they proceeded on the basis of advice that, if they refused permission on traffic grounds, they were unlikely in all the circumstances to be able to sustain the decision on appeal. There was no legal error in such an approach.

35. For those reasons I reject the first ground of challenge.

Second issue: environmental impact assessment

36. As already indicated, about a year before the decision the council had adopted a screening opinion that the proposed development was not development requiring an EIA under the 1999 regulations. Mr Caws contends that the additional material available to the council at the time of its decision, in particular the material relating to traffic congestion, ought to have caused it (1) to reconsider whether it was EIA development and/or (2) to conclude that it was EIA development, and that (3) in those circumstances the council was precluded by the 1999 regulations from granting permission in the absence of an environmental statement.

37. By regulation 2(1) of the 1999 regulations "EIA development" includes "Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location". The proposed development is a schedule 2 development. Whether it is EIA development therefore depends upon whether it is likely to have significant effects on the environment. An EIA application is an application for planning permission for EIA development.

38. Regulation 3 in effect prohibits the grant of planning permission for an EIA development without considering an environmental statement. It reads in material part:

"(1) This application applies -

(a) to every EIA application received by the authority with whom it is lodged on or after the commencement of these Regulations;

....

(2) The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission 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."

39. Much of the argument on the second issue revolves around the effect of a screening opinion, defined in regulation 2(1) as "a written statement of the opinion of the relevant planning authority as to whether development is EIA development". In order to consider the rival contentions, it is necessary to set out parts of regulations 4 and 5 (contained in Part II of the Regulations, "Screening") and regulation 7 (contained in Part III, "Procedures Concerning Applications for Planning Permission"):

"General provisions relating to screening

4(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.

(2) The events referred to in paragraph (1) are:

...

(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.

(3) A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development.

...

(7) The Secretary of State may make a screening direction irrespective of whether he has received a request to do so.

Requests for screening opinions of the local planning authority

5(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.

(2) A request for a screening opinion shall be accompanied by ...

(3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.

(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.

(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request.

(6) Where an authority:

(a) fail to adopt a screening opinion within the relevant period mentioned in paragraph (4); or

(b) adopt an opinion to the effect that the development is EIA development;

the person who requested the opinion may request the Secretary of State to make a screening direction.

Application made to a local planning authority with an environmental statement

7(1) Where it appears to the relevant planning authority that:

(a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and

(b) the development in question has not been the subject of a screening opinion or screening direction; and

(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,

paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1).

(2) Where an EIA application which is before a local planning authority for determination is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, the authority shall notify the applicant in writing that the submission of an environmental statement is required.

(3) An authority shall notify the applicant in accordance with paragraph (2) within three weeks beginning with the date of receipt of the application or such longer period as may be agreed in writing with the applicant ...

(4) An applicant receiving a notification pursuant to paragraph (2) may, within three weeks beginning with the date of the notification, write to the authority stating:

(a) that he accepts their view and is providing an environmental statement; or

(b) unless the Secretary of State has made a screening direction in respect of the development, that he is writing to the Secretary of State to request a screening direction.

...

(6) An authority which has given a notification in accordance with paragraph (2) shall, unless the Secretary of State makes a screening direction to the effect that the development is not EIA development, determine the relevant application only by refusing planning permission if the applicant does not submit an environmental statement and comply with regulation 14(5)."

40. Mr Caws submits that a screening opinion to the effect that development is EIA development is determinative of the matter (subject to the Secretary of State's power to give an overriding screening direction) but that a negative screening opinion is not determinative. It remains open to the planning authority to change its mind and, notwithstanding a previous negative screening opinion, to form the view that development is EIA development and to act on that view when considering whether to grant planning permission. It may be necessary for a change of mind to be justified by a change in circumstances, but in this case the new information available about traffic congestion was a sufficient change of circumstances. To hold that a planning authority is not free to change its mind would be inconsistent both with the directive and with the terms of regulation 3, which prohibits the grant of planning permission for an EIA development unless the environmental information has first been taken into consideration. The ultimate question for the authority at the time of deciding on a planning application is whether the proposed development is an EIA development. If it is, then the authority must act accordingly even if at an earlier stage it took a different view.

41. That approach, submits Mr Caws, is in accordance with the general tenor of the decision of the House of Lords in Berkeley v Secretary of State for the Environment [2000] 3 WLR 420, where their Lordships emphasised the importance of compliance with the requirements of the relevant directive and readily implied into the predecessor regulations a duty to consider whether a development is an EIA development. It is also supported by the relevant government guidance contained in Circular No. 2/99: Environmental Impact Assessment. Paragraph 66 of the circular, dealing with the effect of screening opinions and screening directions, states:

"However, a screening opinion can only be adopted on the basis of the information provided at the time it was given. There may, exceptionally, be cases where an opinion has been given that EIA is not required for a proposed development, but it subsequently becomes evident (for example, from further information submitted in support of a planning application) that it is nevertheless an EIA application. In such cases, the procedures described in paragraphs 67-70 below will apply as they apply in cases where no prior screening opinion has been adopted."

Paragraphs 67-70 of the circular deal with the case of a planning application not accompanied by an environmental statement and in particular the initial consideration to be given by an authority to such an application under regulation 7.

42. Mr Caws ultimately submitted that there are three possible routes to avoid the conclusion that an authority may grant permission for development without an environmental statement even though the authority at the time of granting permission considers the development to be an EIA development. First, the status of a development as an EIA development does not depend on the existence of a screening opinion or screening direction to that effect. If a development is a schedule 2 development and the authority considers it to be likely to have significant effects on the environment, then it is an EIA development, the application is an EIA application and in the absence of an environmental statement regulation 7(2) applies. Secondly, if the status of a development as an EIA development does depend on the existence of a screening opinion or screening direction to that effect, then it is open to the authority to adopt a further screening opinion under regulation 4(2)(b). A screening opinion can be adopted by an authority of its own motion and does not depend on a prior request. It is accepted that regulation 4(7) poses a difficulty for that construction, in that the existence of an express power for the Secretary of State to make a screening direction without a request might be taken to indicate the absence of a power on the part of a planning authority to adopt a screening opinion without a request. But the specific power given to the Secretary of State by regulation 4(7) can be explained by the fact that an express power is needed in his case because the particular development will not be before him for determination, whereas the planning authority will be seized of the application for that development in any event. The third possibility put forward by Mr Caws involves a highly restrictive reading of regulation 7(1). He says that in order to get back into the regulation 7 procedure as contemplated by paragraph 66 of the circular, one should read regulation 7(1)(b) as referring only to a screening opinion that is still considered appropriate in the circumstances.

43. The fallback position adopted by Mr Caws was that it would have been open to the council to seek a screening direction from the Secretary of State under regulation 4(7) if there was otherwise no power to proceed on a different basis from that set out in the council's original screening opinion.

44. Whatever the precise route, he submitted that the council should have considered whether it was an EIA development in the light of the further information before it at the time of its decision on the planning application. That further information had emerged over time and matters came to a head on 14 September. The fact that some adverse traffic impact had been contemplated at the time of the screening opinion did not avoid the need to reconsider the matter in the light of the actual information about the extent of traffic impact. Had the matter been considered properly as at 14 September, the only reasonable conclusion was that the development was likely to have significant effects on the environment and was therefore an EIA development which could not be granted permission in the absence of an environmental statement.

45. Mr Mole QC for the council, supported by Mr Horton QC for Laing Homes, submits that there is simply no power for a local authority, having once adopted a screening opinion that a development is not an EIA development, subsequently to adopt a further opinion to the effect that the development is after all an EIA development. A screening opinion can only be adopted on request. Only the Secretary of State, under regulation 4(7), is given the power to act in the absence of a request. If there has been no screening opinion, then regulation 7(1) takes one back into regulation 5 and enables the authority to adopt such a screening opinion. Where there has been a screening opinion, however, the route back into regulation 5 is not available. One cannot get round the clear wording of regulation 7(1)(b) which provides that it is only where the development has not been the subject of a screening opinion or screening direction that it is possible to adopt a screening opinion under regulation 5 (treating the receipt of the application for planning permission as the equivalent of a request under regulation 5(1)). Thus the plain scheme of the regulations precludes a further screening opinion in the circumstances of this case. Further, an application does not become an EIA application unless and until it has been determined to be an EIA application, whether by a screening opinion or by a screening direction. The routes for a determination are laid down in regulations 4, 5 and 7 (1). Absent such a determination, regulation 7(2) does not apply and the procedure in that and the following paragraphs of regulation 7 cannot be relied on by the authority as a way of requiring the submission of an environmental statement. In so far as paragraph 66 of Circular No. 2/99 suggests that the authority has a power to reconsider its screening opinion, it is wrong.

46. It is further submitted that the construction put forward by the defendant and interested party produces a sensible result which strikes the right balance between the various interests involved. It enables the developer to know what has to be provided in support of the planning application and, if an EIA is needed, to supply it for the purposes of public consultation. Given that everyone will have proceeded on the basis of the screening opinion, it is not surprising that the regulations do not contemplate a change of mind by the authority. Nevertheless there is the ultimate fallback of the power of the Secretary of State under regulation 4(7) to make a screening direction without a request from a developer. The planning authority or a concerned resident could ask the Secretary of State to exercise that power at any time.

47. That analysis, it is submitted, leads to the conclusion that there was no duty on the defendant to reconsider its earlier screening opinion. Even if it had the power to do so, there was no reason for it to do so in the absence of any request or change of circumstances. There was no request, the point was not raised with the council, and no mention of a possible need for an environmental statement was made even by the claimants' solicitors in a letter dated 6 September 2000 to the Government Office for London. There was no change of circumstances that rendered it necessary to reconsider the matter. The screening opinion had contemplated that a traffic impact assessment would be carried out. What had emerged by way of information as to traffic impact was not unforeseen. It was reasonable to proceed without giving further consideration to the issue of EIA development.

48. Mr Horton submitted further that the claimants were too late to raise the issue of reconsideration of the screening opinion. The grounds of the application in that respect first arose long before the September meetings - whether at the time of the planning application itself (accompanied by the transport impact assessment), or of the Chief Planning Officer's report of 21 June, or of the CBP report (received at some time between June and September). The claimants' failure to act promptly had caused Laing Homes prejudice (it is incurring costs in the region of £7,000 a day by reason of the delay in the resolution of these proceedings). Relief should be refused in any event on that ground.

49. Certain additional arguments concerning the relevance of cumulative impact of a number of developments and relating to the exercise of discretion if the defendant acted unlawfully in relation to the EIA issue were not pursued before me.

50. I can express my conclusions on those rival contentions as follows:

i) The fundamental provision in the 1999 Regulations is the prohibition in regulation 3 on the grant of permission pursuant to an EIA application without taking into consideration the relevant environmental information. The other provisions of the Regulations should be read in such a way as to ensure that a planning authority is not required to grant permission without consideration of the relevant environmental information if it considers that the development is an EIA development and the Secretary of State has not taken a contrary view.

ii) The screening provisions in Part II provide a procedure for determining whether a development is an EIA development and therefore whether an application is an EIA application. They are not, however, expressed to lay down an exhaustive procedure and they specify the extent to which they are determinative for the purpose of the Regulations By regulation 4(1)-(3), a planning authority's screening opinion to the effect that a development is EIA development (a positive screening opinion) is determinative in the absence of a contrary screening direction by the Secretary of State. A screening opinion to the effect that a development is not an EIA development (a negative screening opinion) is not said to be determinative even in the absence of a screening direction by the Secretary of State. By contrast, a screening direction by the Secretary of State is said to be determinative either way, i.e. as to whether development is or is not EIA development. It seems to me that the difference as between the position of the planning authority and that of the Secretary of State cannot be explained simply by the overriding nature of the Secretary of State's screening direction, since that consideration applies equally to positive as to negative screening opinions. In my view the regulations have left deliberately open the possibility that a planning authority, having given a negative screening direction, may subsequently determine that the development is nonetheless an EIA development.

iii) There is, however, no power to adopt a further screening opinion in the absence of a request from the proposed developer. The procedure is for an opinion to be adopted in response to a request under regulation 5, with the possibility of a request to the Secretary of State under regulations 5(6) and 6 for a screening direction if the planning authority fails to adopt an opinion or adopts a positive opinion. The Secretary of State is also given the express power by regulation 4(7) to make a screening direction without a request. The existence of that express power tells very strongly against the implication of a corresponding power for a planning authority to adopt a screening opinion without a request.

iv) Regulation 7(1) does not apply where a negative screening opinion has already been given. The strained construction suggested by Mr Caws is unsustainable.

v) Regulation 7(2), however, can apply where a negative screening opinion has already been given. Since the negative screening opinion is not determinative, it is open to an authority to form the view that an application before it is an EIA application notwithstanding an earlier negative opinion, and to notify the applicant that an environmental statement is therefore required. A change of mind would be at risk of challenge on ordinary public law grounds in the absence of good reasons for it (though the applicant would have the alternative avenue of requesting a screening direction from the Secretary of State). But in an appropriate case a change of mind might be justified by a change in circumstances since the date of the screening opinion. Accordingly I take the view that paragraph 66 of Circular No. 2/99 is correct.

vi) By regulation 7(3), however, any notification under regulation 7(2) must be made within three weeks from receipt of the application or such longer period as may be agreed in writing with the applicant. In the present case the notification would have had to be made in the latter part of 1999, whereas most of the claimants' arguments focused on the position as at 14 September 2000 and cannot therefore base themselves on regulation 7(2).

vii) Whether or not I am right in relation to the applicability of regulation 7(2), the power of the Secretary of State under regulation 4(7) to make a screening direction without any request from the developer provides a fallback position, as I think all parties eventually accepted. It means that, if the council took the view that its negative screening opinion was no longer appropriate, it was at least open to it to seek the making of a screening direction that the development was EIA development.

viii) Accordingly the negative screening opinion was not necessarily the end of the matter. One way or another the council did have the power to do something about it if, in the light of the further information, it took the view that the development was after all an EIA development.

ix) I do not consider, however, that the council was under any duty to consider the matter further. The matter had already been given express consideration at the time of the adoption of the screening opinion. There was no express duty under the Regulations to reconsider it at the time of determining the planning application, and in my view there is no need to imply such a duty: the circumstances differ from those in which an implied duty on the Secretary of State was found in Berkeley v. Secretary of State at [2000] WLR 429H-430D. Further, there was no request by anybody for the matter to be reconsidered, nor any suggestion that the development was after all an EIA development. The circumstances were not materially different from those at the time of the negative screening opinion. The issue of adverse traffic impact had been taken into account at that time. The traffic impact assessments themselves added detail but were not such as to compel a reasonable authority to reconsider the question of EIA status. If the matter was as obvious as the claimants now contend, then it is remarkable that it was not raised by any of the objectors at the time.

x) In circumstances where the council adopted an unchallenged negative screening opinion and was under no duty to reconsider it, I do not think that it is open to the claimants now to challenge the substance of the council's view that the development was not an EIA development. But if and in so far as the point arises for decision, I reject the contention that it was necessarily an EIA development and that the grant of permission was therefore in breach of regulation 3. That there would be some environmental impact in the form of traffic congestion is undeniable. But it cannot in my view be said that the only reasonable conclusion open to the council was that the development was likely to have "significant effects on the environment" for the purposes of the Regulations.

51. Accordingly the claimants' case also fails on the second main issue.

Third issue: procedural unfairness

52. Various procedural issues originally raised by the claimants have fallen away. There remains one point. It is submitted that prior to the September meetings of the Planning Committee, the members of the majority Labour group had met to discuss the matter and had either decided that committee members should approve the application or had left committee members under the impression that that was what they were required to do. The result, it is said, is that committee members did not consider the application fairly and impartially on its merits during the debates on 6 and 14/15 September.

53. The matter was originally pleaded in terms of Article 6 of the European Convention on Human Rights as well as domestic law. This met with substantial counter-arguments in the skeleton arguments for the defendant and interested party. In his oral submissions Mr Caws did not pursue Article 6 as a separate point, accepting that for present purposes it did not add materially to domestic law.

54. The case under domestic law is founded on observations of Woolf J in R v Amber Valley District Council, ex parte Jackson [1985] 1WLR 298, 307-308. In that case the local group of the Labour party, the majority party on the district council, had resolved in advance to support the development for which planning permission was sought. Woolf J held that on the evidence the majority were "politically predisposed" in favour of the development but that this did not disqualify them from dealing with the application. Moreover the existence of the Labour group's policy to support the development did not preclude consideration of the planning application on its merits:

"I do not say that the court can never intervene .... however in this case, while the Labour majority undoubtedly had a policy, there is no evidence before me on which it would be right to hold that they would not (despite the policy) consider the objections to the planning application on their merits. I would make absolutely clear that they are under a duty to do so. However in this case, I have an affidavit from the leader of the majority Labour group on the District Council that when the Planning Committee comes to consider the application all material considerations will be taken into account .... While therefore I understand the applicant's anxiety in this matter, it seems to me this is not a case where it would be proper for the court to continue to intervene" (308 C-F).

55. Factually, submits Mr Caws, the present case is very different. There was a predetermination which precluded consideration of the application on its merits. Mr Caws accepts that on the available evidence he cannot sustain a contention that the Labour group took a formal decision to approve the application at the meeting of the Planning Committee. But he says that the evidence shows a belief on the part of members that a decision had been reached to that effect, and that belief predetermined the way in which the matter was approached at the meeting of the Planning Committee. It meant that the members of the Labour group did not have regard to the merits of the objections advanced.

56. The evidential foundation for that contention is to be found in the witness statement of Mr Ian Lipman, who is a partner in the claimants' firm of solicitors but also attended the meeting of the Planning Committee on 6 and 14/15 September as a concerned local resident. In that witness statement Mr Lipman states:

"It was apparent that members of the Labour Group had already made up their minds prior to commencement of the meeting on 6 September and that the grant of planning permission had already been decided in or by the Labour Group. This is evidenced by the comment of Councillor Huw Davies, a Labour Group member on the Planning Committee, who stated at the meeting on 6 September that 'we amongst the Labour Group have already discussed this application before and have already decided to approve the application and have reached our decision on the basis of the need for social housing across the borough.'"

57. The council's evidence includes statements from three witnesses relevant to that issue. Councillor Davies confirms in his first statement that he was present at the meeting on 6 September, states that the only time he spoke was to ask two questions of objectors, and categorically denies make the statement attributed to him. At the meeting on 14 September he read a prepared speech. He is aware that the code of practice (referred to below) states that political groups should not make decisions on applications until they have all the facts, including any debate at committee, and he states that in his experience as a member of the Planning Committee planning applications are never predetermined by his group.

58. Mr Hewitson, the council's Solicitor, states that he does not recall Councillor Davies making any such statement as is attributed to him by the claimants and that he would have noticed if such a statement had been made because, as legal advisor to the committee, he is acutely aware of the possible legal consequences of members prejudging planning matters. He too refers to the code of practice.

59. Councillor Shah, who chaired the Planning Committee meeting, confirms that he did not hear Councillor Davies make the statement attributed to him and says that such a statement would have been immediately picked up by him and corrected, as no decision whatsoever had been taken by the Labour group on the application prior to the meetings. It is common practice for every group to discuss planning applications prior to a Planning Committee meeting, but no decisions are ever made by the Labour group on any application and it is the group's practice never to implement the use of the whip on any planning matters. He too refers to the code of practice.

60. Paragraph 2.4 of the code of practice stresses the importance of acting and being seen to act fairly and openly, approaching each application independently with an open mind before weighing up all the material issues, and determining each application on its own merits. Paragraph 5.2, under the heading "Lobbying", states:

"Councillors should not make up their minds on an application until they have all the facts, including the benefit of the Officer's report and any debate at the Planning Committee or Sub-Committee."

Paragraph 5.5 reads:

"In reality, Councillors will often form a judgment about an application early in the process, whether or not they have been lobbied. The difficulty created by the nature of the Planning Committee's proceedings described above is that Members of the Committee (at least those who are councillors of a particular ward) should not openly declare which way they intend to vote in advance of the formal consideration at the Committee meeting, and of hearing all the relevant information and arguments. For this reason it is inappropriate for any political group of Councillors to decide in advance how Councillors should vote on a particular application."

61. In his second statement Mr Lipman places the remark attributed to Councillor Davies on 6 September within the context of the debate on a preliminary proposal to refer the planning application to the full council rather than the later debate on the application itself. Mr Lipman also produces his contemporaneous note recording the remark.

62. That has prompted the further witness statements from the council to which I have previously made reference. They include an acceptance by Councillor Davies that he did speak during the procedural debate (which he had not recalled at the time of his first statement) and that he did refer at that time to the matter having been discussed in the Labour group. But he still maintains that he did not say that the matter had been decided by the Labour group and he repeats that planning applications are never predetermined by the group. Mr Hewitson produces the contemporaneous notes of the committee secretary, which confirm that Councillor Davies spoke in the early part of the debate and that he made some reference to the Labour group having discussed the matter and said something about a decision for the need for social housing. The secretary's notes provide support for Mr Lipman's evidence but do not go as far as his own note.

63. Mr Caws accepts that the evidence leaves room for some doubt about what precisely transpired, but submits that on the balance of probabilities (see per Simon Brown J in R v. Secretary of State for the Home Department, ex parte Majid, The Times, 13 June 1986) Councillor Davies did make the remark attributed to him and was saying in effect that the debate before the committee would not affect the outcome because the matter had been decided already by the Labour group. Whether or not it had actually been decided in that way, the belief that it had been amounted to a sufficient predetermination to render the decision procedurally unfair.

64. In my judgment there are two main difficulties about that submission. First, although it is now reasonably clear that Councillor Davies did say something about a discussion of the matter in the Labour group, the claimants' case depends upon his having said in terms that the Labour group had already decided to approve the application; and I am not satisfied, even on the balance of probabilities, that he did use words to that effect. I have no reason whatsoever to doubt Mr Lipman's good faith in recording and communicating to this court what he thought he heard Councillor Davies say. Equally, however, I have no reason to doubt Councillor Davies's good faith in denying it and in persisting in that denial after correcting what he admits to have been an error in his first witness statement. It seems to me that there was considerable scope in a meeting of this sort for mis-hearing or misunderstanding precisely what was said, and I would regard that as the most likely explanation for the factual difference between the parties. Beyond that I do not think that I can sensibly resolve the factual difference on the material before me. It follows that the claimants have failed to establish the factual basis of their case (cf. R v. Camden London Borough Council, ex parte Cran (1995) 94 LGR 8).

65. Secondly, however, and perhaps more importantly, the claimants would in my view fail to get home even if I found in their favour on the narrow factual issue. If Councillor Davies did make the remark attributed to him, its significance would still have to be assessed in the light of the evidence, including the evidence of Councillor Davies himself, that all concerned were aware of the code of practice and of the importance of avoiding predetermination of planning applications, and the evidence that this particular application was not the subject of predetermination. Such evidence makes it impossible, in my judgment, to accept even the submission that members of the Labour group believed that a decision had been made to approve the application and that that they therefore did not have regard to the merits of the objections advanced in the course of the committee debates. The evidence as a whole does not take this case beyond one of political disposition and into the category of procedural unfairness as identified in Amber Valley.

66. On this issue, too, I therefore reject the claimants' case.

Conclusion

67. For the reasons given in this judgment, the claimants have failed on each of the grounds advanced and the application for judicial review must be dismissed.


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