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England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Jedwell, R (on the application of) v Denbighshire County Council & Anor [2016] EWHC 458 (Admin) (10 March 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/458.html
Cite as: [2016] EWHC 458 (Admin)

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Neutral Citation Number: [2016] EWHC 458 (Admin)
Case No: CO/11522/2013

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES

The Law Courts
Bodhyfryd
Wrexham
10/03/16

B e f o r e :

MR JUSTICE HICKINBOTTOM
____________________

Between:
THE QUEEN on the application of
ANDREW JEDWELL


Claimant
- and -


DENBIGHSHIRE COUNTY COUNCIL




Defendant
- and -


DH & DR JONES

Interested Parties

____________________

Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law) for the Claimant
John Hunter (instructed by Denbighshire County Council Legal Services)
for the Defendant
John Hunter (instructed by Aaron and Partners LLP for the Interested Parties
Hearing date: 2 March 2016
Further written submissions: 4-7 March 2016

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Hickinbottom :

    Introduction

  1. This claim concerns two 46-metre high 50kw wind turbines and ancillary works on land at Syrior, Llandrillo, Denbighshire ("the Site"). An application for planning permission for the development was made by the Interested Parties ("the Developers") to the Defendant planning authority ("the Council"); and, on 12 July 2013, conditional permission was granted.
  2. Prior to that grant and as part of the planning process, the Council (through one of its planning officers, Mrs Denise Shaw) adopted a screening opinion stating that no Environmental Impact Assessment ("EIA") was required. In this claim, the Claimant Andrew Jedwell, a local resident opposed to the development, contends that, as a result of the reasoning in the screening opinion being inadequate, the grant of planning permission is itself invalid and should be quashed.
  3. The Legal Background

  4. The relevant legal background is as follows.
  5. In considering applications for certain major development projects, Council Directive 85/337/EC ("the 1985 Directive"), which came into force in 1988, requires an EIA, i.e. the presentation, collection, publication and assessment of information on the environmental effects of the proposed project. The 1985 Directive and various amendments are being replaced by Directive 2011/92/EU as amended by Directive 2014/52/EU ("the 2011 Directive"); but the period for transposing that Directive as amended does not expire until May 2017 and, in Wales (although not in England), the relevant position is still regulated by the 1985 Directive as implemented by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293) ("the 1999 Regulations").
  6. The 1985 Directive is designed to ensure that developments which may have a significant effect on the wider environment ("EIA developments") are subject to enhanced consultation and assessment of that effect, with the collection and assessment of information on the environmental effects of the project, including required information from the applicant in the form of an environmental statement. By virtue of regulation 3(2) of the 1999 Regulations, an authority is prohibited from granting planning permission in respect of an EIA development unless it has first taken into account environmental information in the form of an EIA; and it is required to state in its decision that it has done so.
  7. Some proposed developments, by their nature, attract the enhanced procedural requirements in any event ("Schedule 1 developments"). Others may attract those enhancements because they are likely to have significant effect on the environment by virtue of factors such as their nature, size or location ("Schedule 2 developments"). For these, an initial assessment of whether the particular development is likely to have such an effect is necessitated. If it is concluded that it does, then it is required to have the enhanced EIA: if it is concluded that it does not, then there is no additional requirement. Regulation 4(5) of, and Schedule 3 to, the 1999 Regulations (directly reflecting the 1985 Directive) set out matters which a decision-maker must take into account in deciding whether a development of a Schedule 2 development. Under Schedule 3, consideration must be given to the characteristics of the development having regard, in particular, to (amongst other things) "the cumulation with other development" (paragraph 1(b)).
  8. Furthermore, paragraph 46 of Circular 02/1999: Environmental Impact Assessment (issued as guidance for the application of the 1999 Regulations, and still applicable in Wales) ("the 1999 Circular") emphasises that:
  9. "… in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or approved development".
  10. Annex A of the 1999 Circular contains what are described as "indicative thresholds and criteria for the identification of Schedule 2 development requiring EIA". It is made clear that they are indicative only, and are designed to provide only general assistance to local planning authorities. In respect of windfarms, paragraph A15 of that annex provides,:
  11. "The likelihood of significant effects will generally depend upon the scale of the development, and its visual impact, as well as potential noise impacts. EIA is more likely to be required for commercial developments of five or more turbines, or more than 5MW of new generating capacity."
  12. Where a developer considers that a proposed development may be an EIA development, he is able to ask the authority for a "screening opinion" (regulation 5(1) of the 1985 Regulations), i.e. "a written statement of the opinion of the relevant planning authority as to whether development is EIA development" (regulation 2(1)). By regulation 5(4), an authority must respond to a request for a screening opinion within three weeks of receipt, or such other time as agreed.
  13. In respect of a screening decision, regulation 4(6) imposes an obligation upon the planning authority to give reasons, but only where it adopts a screening opinion to the effect that development is EIA development, and thus an EIA is required. The 1999 Regulations do not impose an obligation to give reasons for a negative screening opinion. The 2011 Directive, implemented in England by the Town & Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No 1824), requires reasons to be given for either a positive or a negative decision, at the time of the decision. Although the 2011 Directive as amended mandates adoption of that requirement by May 2017, Wales has not yet implemented that Directive. The position in Wales thus continues to be regulated by the 1985 Directive and the 1999 Regulations.
  14. Although the 1999 Regulations do not impose an obligation to give reasons for a negative screening opinion, such an obligation was confirmed as a matter of European law by the European Court of Justice in R (Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 18 ("Mellor"). At [57]-[60], the court said:
  15. "57. It is apparent, however, that third parties as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary.
    58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority's screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.
    59. In that regard, effective judicial review, which must be able to cover the legality of the reasons for the contested decision presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request (see Heylens v Union nationale des entraineurs et cadres techniques professionnels du football (Unectef) (2009) CJEC Case 222/86) [1987] ECR 4097 at [15]).
    60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made."

    Given the terms of [60] in Mellor, where a request is made to the relevant authority for reasons, it has the common appellation of "a Mellor request"; and an authority's obligation to provide reasons for a negative screening opinion following such a request is known as "the Mellor duty".

  16. Thus, reasons are necessary for any screening opinion so that relevant persons, including members of the public, are able to consider whether the substantive screening decision is lawful; and, if they consider it appropriate, challenge it as unlawful.
  17. The European Court proceeded to consider performance and satisfaction of that duty. At [64]-[66], it said:
  18. "64. … [T]he determination must be such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention.
    65. It cannot, in those circumstances, be ruled out that in the case in the main proceedings the Secretary of State's reasons might be considered sufficient, taking into account, in particular, factors which have already been brought to the attention of interested parties, provided that the latter can ask for and obtain from the competent authorities, subject to judicial review, the necessary supplementary information to fill any gaps in that reasoning.
    66. That answer to the second and third questions is therefore that, if a determination of a Member State not to subject a project falling within Annex II to Directive 85/337 to an EIA in accordance with arts 5-10 of that directive states the reasons on which it is based, that determination is sufficiently reasoned where the reasons which it contains, added to factors which have already been brought to the attention of interested parties, and supplemented by any necessary additional information that the competent national administration is required to provide to those interested parties at their request, can enable them to decide whether to appeal against that decision."
  19. The appropriate standard of reasons for these purposes was further considered in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 ("Bateman"). Moore-Bick LJ said (at [21]):
  20. "…it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request."

    In other words, the decision-maker must make clear why he or she did not consider that the development is likely to have significant effect on the environment (see [28]).

    The Factual Background

  21. This claim has been the subject of earlier hearings before Foskett J ([2014] EWHC 1633 (Admin)), and the Court of Appeal in which Lewison LJ gave the substantive judgment of the court ([2015] EWCA Civ 1232). The factual background to the claim is fully set out in those judgments, upon which I have heavily relied in this section of this judgment; and I acknowledge my particular indebtedness to Lewison LJ in that regard.
  22. The Site is not within a specially protected area, but it is close to several. It is within 4km of the Snowdonia National Park, just over 6km from the Clwydian Range and Dee Valley Areas of Outstanding Natural Beauty and within 4km of two Landscape of Historic Interest Areas, Berwyn and Bala a Glannau Tegid. The nearby Berwyn Mountains are designated as a Special Area of Conservation, a Special Protected Area, a Site of Special Scientific Interest and a National Nature Reserve. The Mynydd Mynyllod local wildlife site is about 400m to the north of the application site, and the Unitary Plan designated Area of Natural Beauty is about 2km to the south-east.
  23. The application site also lies approximately 2.2km from an existing windfarm development at Braich Ddu; and is immediately adjacent to what was, at the relevant time, a proposed wind energy development at Mynydd Mynyllod – although, at that time, no formal application for planning permission for development at Mynydd Mynyllod had been submitted.
  24. Mrs Shaw was employed by the Council from 2 January 2012 as a Planning Officer with particular responsibility for renewal energy projects. She had previously been a local authority planning officer in Wrexham and Wigan; and, immediately before she started work in Denbighshire, she worked for a private company involved in renewable energy.
  25. In early 2012, the Developers were in correspondence with Mrs Shaw concerning the proposed development. On 15 February, she visited the Site; and, on 20 February, she wrote to the Developers' agents saying that an EIA is "usually required" where the turbine hub height exceeds 15m, as the hub height in the proposed development would. On 23 February 2012, the agents wrote to her requesting a screening opinion. Referring to paragraphs 33 and A15 of Circular 11/99, they argued, strongly, that no EIA was required because the proposed development was small scale local development with no wide-ranging impact, which "does not present unusually complex or potentially hazardous environmental effects". By regulation 5(4), the Council was required to respond to the request by 15 March 2012.
  26. In relation to this request, Mrs Shaw contacted the Countryside Council for Wales ("the CCW"), a statutory body which, until 2013 (when it was merged into Natural Resources Wales), advised the Welsh Government particularly upon designated wildlife and landscapes that were the subject of national or international protection. On 2 March 2012, she sent an email to the CCW saying that the Council had received four EIA screening requests for 50kW wind turbines, including the Site; and, although the Council had previously issued negative screening opinions for such projects, "a couple of these sites are particularly constrained". She asked for advice on whether the CCW considered an EIA was required in these cases. Of the Site, she said:
  27. "2 no. 50kW wind turbine and control box at field close to Syrior, Llandrillo, Corwen LL21 0AT
    The site is less than 1km away from Mynydd Mynyllod which is a designated wildlife site;
    The site is approximately 3km away from the Berwyns – Is this far enough away from the statutory designation to not give rise to significant effects: If we issue a negative screening opinion, would you still expect to see ecological surveys to accompany the application?
    As I say, this isn't a formal consultation request, but I'll need to issue the opinion before the 15 March, so if you could get back to me by the end of the next week that would be great."
  28. That email was not available to Foskett J or the Court of Appeal: it has been found subsequently. Mrs Shaw said, and I accept, that she deleted the email, probably in December 2012 shortly before she went on maternity leave; no one asked her to recall it; and, since the Court of Appeal hearing, it has been discovered on the Council's computer system as a deleted email.
  29. Geraint Davies, a Conservation Officer with the CCW, responded to the Council on 15 March 2012. He said that, although the proposed hub heights were over 35m, "in terms of the likely impacts on natural heritage features, the CCW believe an EIA will not be necessary…"; and, in their view, "the proposal is unlikely to affect, either directly or indirectly, the features, functionality or integrity of any statutory protected sites…". However, in relation to "Landscape", Mr Davies said:
  30. "Whilst not located within the boundaries of any statutory protected designated landscapes, we note that the [Site] lies immediately adjacent to the proposed Scottish Power Renewables wind energy development at Mynydd Mynyllod, and approximately 2.2km from the existing wind farm development at Braich Ddu. Consequently, in order to properly assess the cumulative impact of this wind energy development with others in the locality (either existing or within the planning process), we advise that the applicants undertake a Landscape and Visual Impact Assessment (LVIA) appropriate to the proposal's scale and location."
  31. Having received that email, later the same day (15 March 2012), Mrs Shaw on behalf of the Council issued a screening opinion stating that no EIA would be required. That determination, in Section B of the opinion, was preceded by a formal rubric stating:
  32. "Consideration has been given by the local Planning Authority to the relevant selection criteria in schedule 3 to the Regulations, the general guidance contained in EIA Circular 11/99, that any indicative criteria in annex A of the Circular and in the case of the schedule 2 development, whether it is a sensitive area under regulation 2(1)."

    Section C purportedly gave the reasons for the Council's decision, as follows:

    "Having regard to the guidance given in the regulations and in the Circular, the proposed development would not give rise to significant effects in this instance."
  33. The covering letter sent to the Developer's agents with that opinion said that, although a negative screening opinion had been issued, the Council would still expect "detailed supportive information to be submitted with the planning application". It also set out verbatim the CCW's response about landscape to which I have briefly referred; but did not relay the CCW's informal view that no EIA was required.
  34. The Developers submitted their application for planning permission on 23 April 2012. It came before the Council's Planning Committee on 17 October 2012.
  35. In accordance with usual practice, the Committee members were assisted by a detailed officers' report. The report noted that the CCW had said that the cumulative effect of the proposal had not been considered; and that the CCW's position was that they objected to the proposal until such time as sufficient information had been provided to overcome their concerns. A number of individual objectors had also objected on the ground of cumulative impact of the proposed development. The officers recommended refusal of the application. In the usual way, in the event that the Committee were to approve the officers' recommendation, the officers suggested reasons for refusal, as follows:
  36. "It is the opinion of the Local Planning Authority that the erection of 2 no. 46 metre high 50KW turbines in this location would have an adverse impact on the setting of protected landscape areas… and have a detrimental impact on the open character and visual quality of Mynydd Mynyllod, a non-statutory landscape of county/regional importance, resulting in adverse visual effects when viewed from parts of north Berwyn, public access and public rights of way in the area. It is also the opinion of the Local Planning Authority that insufficient information has been provided to demonstrate the proposal will not give rise to adverse cumulative effects when considered in combination with operational and consented windfarm development, and in particular the Braich Ddu windfarm. In conclusion the harmful landscape impacts are considered to significantly outweigh the benefits of increased renewable energy generation…"

    In concluding that the harmful landscape impacts of the proposal outweighed its planning benefits, the officers thus identified two elements, namely (i) the adverse impact of the proposal on the openness and visual quality of Mynydd Mynyllod, and (ii) the cumulative effect of the proposal when considered with other windfarm developments, particularly that at Braich Ddu.

  37. The Committee decided to defer making a decision on the application in order to allow the Developers time to address the queries raised by the CCW and in the officers' report.
  38. Mrs Shaw went on maternity leave from Christmas 2012. Before doing so, she tidied up both her room and her computer by throwing away notes for which she thought there would be no further use; and similarly deleting emails. In her absence, her colleague Neil Walters took over as case officer for the planning application for the Site.
  39. On 22 January 2013, Mr Broughton (a local resident who was part of a group opposed to the development) wrote to the planning officer, saying that the screening opinion had given no indication that the cumulative effect of the proposal had been considered, and this was a "potentially serious problem". The letter was very much focused on the cumulative effect of the proposal, including the effect taken with the proposed windfarm at Mynydd Mynyllod; and Mr Broughton ended by saying that this "should be considered". He said that "the screening opinion does not lead [sic] a reader any the wiser as to how the various guidance was applied in concluding that the effects would not be significant".
  40. Mr Walters responded by email on 30 January 2013, as follows:
  41. "I acknowledge your letter of 22 January.
    I do not agree with your assessment of the approach taken when issuing the screening opinion on the proposed wind turbine development at Syrior.
    The assessment was made having regard to the advice given in the up to date EIA Regulations and associated guidance. Just because it transpired that the Planning Authority recommends refusal on a subsequent application doesn't mean that it should have requested that the application be supported by a formal Environmental Statement under the Regs.
    I note the contents of your last paragraph but I am satisfied that the possible Mynydd Mynyllod (NIP scheme) should not have been taken into account in the screening opinion on Syrior."
  42. By the time the application came back before the Committee, the Developers had been in correspondence with the CCW. The Developers had questioned the need to include the potential impact of the proposal on the Mynydd Mynyllod development because that was not in the planning process, an application for planning permission for that scheme not having been made. However, the CCW took the view that that scheme was reasonably foreseeable, and should therefore be included in the cumulative impact assessment. This divergence of views was reported to the Committee in the officers' report. The officers considered that little weight should be given to the cumulative impact of the Mynydd Mynyllod scheme, because no application for planning permission had yet been submitted –– but they nevertheless concluded that there were "potentially significant harmful landscape impacts", and once again recommended refusal.
  43. On 20 February 2013, by fourteen votes to twelve, the Committee decided to reject their officers' recommendation, and resolved to grant planning permission.
  44. On 4 April 2013, the Claimant through his solicitors sent the Council a pre-action protocol letter, one of the grounds of challenge being that an EIA had not been obtained and the screening opinion was inadequate because it gave no consideration to whether an EIA would be required on the basis of the development's cumulative impact with other developments, notably the existing Braich Ddu windfarm and the proposed Mynydd Mynyllod windfarm. It said:
  45. "The Council's screening opinion does not inform the reader as to how the Council reached their negative screening opinion."
  46. In its reply on 29 April 2013, the Council accepted that, although the 1999 regulations did not expressly require reasons for a negative screening opinion, "underlying reasons" must be made available upon request. However, they denied that any such request had been made by the Claimant.
  47. On 1 May 2013, the Claimant's solicitors responded asking for:
  48. "…any further reasoning for the screening opinion that was made. By this we mean contemporaneous reasons, and when you respond please could you confirm that what you send is just that."
  49. The Council replied on 22 May 2013 that, having checked with the "client department, there is nothing further to add to what has already been said".
  50. Outline planning permission was granted, in accordance with the Council's resolution, on 12 July 2013.
  51. The Claimant's solicitors sent a second pre-action protocol letter on 31 July 2013. It relied upon three grounds, including (i) the Counsel had acted irrationally in not following their own officers' recommendation, and (ii) the Council had taken into account an immaterial consideration, namely the personal characteristics of the applicant Developers and their purported support for the local economy. Neither of those grounds remains extant.
  52. In respect of the third ground, the letter said:
  53. "38. This screening opinion gave no apparent consideration to whether EIA would be required on the basis of the development's cumulative impact with other development as it is required to do (in accordance with paragraph 46 of Circular 11/99 and European and domestic authority…. In particular, no regard was had to the potential for cumulative environmental effects with the existing windfarm at Braich Ddu windfarm and the proposed Mynydd Mynyllod windfarm.
    39. …
    40. Both the CJEU and domestic courts have been astute to prevent projects from avoiding EIA by looking at them in isolation rather than in combination with other proposed schemes…".

    The letter was clear, beyond doubt, that the Claimant's concern and the alleged unlawfulness lay in the Council's failure to give proper consideration to the cumulative effects of the proposed development with the other two identified schemes.

  54. On 8 August 2013, the Council responded stating that it was "inconceivable" that the author of the screening opinion (i.e. Mrs Shaw) failed to have regard to cumulative effects. It noted that there was no requirement to give reasons for a negative screening opinion; and it gave no further reasons for the opinion that had been given.
  55. The Proceedings

  56. This claim for judicial review was issued on 19 August 2013. Reflecting the 31 July 2013 pre-action protocol letter, Ground 1 was that the screening opinion gave no apparent consideration to cumulative effect. The other grounds reflected those in the pre-action protocol letter, which are no longer pursued. I need say nothing further about them.
  57. In response to Ground 1, in paragraph 19 of its summary grounds, the Council again stated that it was "inconceivable" that the author of the opinion failed to have regard to cumulative effects; and, at paragraph 21, averring that "the screening opinion provided a sufficiently clear and concise record of the way in which [the Council] screened the proposed development", especially given that there was "no absolute requirement under the [1999] Regulations that reasons appear on the face of a negative screening opinion".
  58. On 1 October 2013, the Claimant served a Reply which, at paragraph 6, noted:
  59. "There is no evidence, or even an assertion by [the Council], that the officer gave actual consideration to whether the cumulative effects of the proposed turbines with other windfarms resulted in significant effects."
  60. That same day (1 October 2013), Mrs Shaw signed a witness statement, dealing with the screening opinion. In that statement, having referred to her informal consultation with the CCW and annexed a copy of the CCW's response, she continued:
  61. "11. My analysis of the Screening Request included an assessment of the impact of the proposal on relevant environmental receptors, but in particular on the statutory designation, protected species and habitats, visual and landscape impact, and the impact on residential and public amenity.
    12. Furthermore, given the proximity of the site to an existing windfarm (Braich Ddu windfarm, approximately 2.2km away from the site within the administrative boundary of Gwynedd County Council), and other windfarm developments within the wider locality (specifically Wern Ddu windfarm in Gwyddelwern and the consented windfarm developments within the southern section of Clocaenog Forest Strategic Search Area), the cumulative effects of the proposal in combination with other consented and operational wind energy schemes were also taken into consideration.
    13. However, whilst there is also a proposal for a nationally significant windfarm immediately adjacent to the Syrior site (the proposed Mynydd Mynyllod windfarm), although I paid some regard to the proposal, I did not consider it appropriate to apportion significant weight to the cumulative impact of the Syrior proposal in combination with the Mynydd Mynyllod windfarm when assessing the potential environmental effects, given that an application for development consent had yet to be submitted to the Planning Inspectorate. I was therefore of the opinion that the Mynydd Mynyllod windfarm proposal was still in the early pre-planning stages could not reasonably to be 'in-planning'.
    14. Having taken into account the comments of CCW, the 1999 Regulations and the guidance in [the 1999 Circular], I concluded that whilst this development may result in some environmental effects, it would be unlikely to give rise to significant effects on the environment in this instance, due to its nature, size and location. I reached this view, having taken into account the likely impact of the proposal individually and in combination with the other windfarm schemes that I have mentioned previously in this witness statement.
    15. I therefore considered it appropriate to issue a negative Screening Opinion on 15 March 2012…". (emphasis in the original).

    She confirmed (in paragraph 16) that there was no change in circumstances between the date of that opinion and the grant of planning permission.

  62. On 4 November 2013, permission to proceed was granted; and the substantive hearing came before Foskett J on 20 May 2014.
  63. In relation to the EIA ground, in the alternative to the substantive contention pleaded, Foskett J gave permission to rely upon a reasons ground. In respect of that ground, he accepted that the screening opinion was inadequately reasoned, but found that its deficiency in reasoning was "cured" by Mrs Shaw's statement of 1 October 2013. In doing so, refusing an application for the cross-examination of Mrs Shaw, he found that the substance of her statement adequately set out her contemporaneous reasons for giving a negative screening opinion in March 2012. Therefore, whilst he said he would have quashed the planning permission absent Mrs Shaw's statement, in the event he dismissed the application for judicial review, thus upholding the planning permission granted.
  64. On 30 September 2014, Lewison LJ granted permission to appeal from the judgement of Foskett J; and the appeal came before the full court on 19 November 2015, judgment being handed down on 2 December. Lewison LJ gave the only substantive judgment.
  65. The Court of Appeal dismissed all grounds of appeal, save for that concerning the EIA screening opinion and the reasons for it. In relation to that, at [20], Lewison LJ identified five questions that were before the court. Those questions, with his response, were as follows:
  66. i) Was the screening opinion adequately reasoned? No. In Lewison LJ's view, the screening opinion was simply a statement of a conclusion, without any reasoning at all, and the subsequent correspondence did nothing to repair that deficiency (see [33]-[34]).

    ii) If not, did the Appellant make a valid request for the reasons why the Council issued a negative screening opinion? Yes. Lewison LJ considered that the Claimant's solicitors' letter of 1 May 2013 – which asked for "contemporaneous reasoning" – was a Mellor request (see [35]).

    iii) Was the Council's response (leaving out of account Mrs Shaw's witness statement) enough to satisfy whatever legal duty it had to give reasons? No. The Council responded to requests and chasers by saying that it had nothing to add by way of reasoning. As at the relevant time (i.e. the date the proceedings were issued), the Council was in breach of its legal duty to give reasons following a valid Mellor request (see [36]).

    iv) If it was not, was Mrs Shaw's witness statement too late to rescue the position? Yes, and no. Lewison LJ dealt with this issue at [37]-[46]. He, said that, although the Council could have more than one attempt at giving adequate reasons following a Mellor request, it must give reasons within a reasonable time, and in any event before proceedings for breach are issued. Therefore, Mrs Shaw's evidence (which was not served until after this claim was issued and served) was not relevant to the question of breach: the Council was, in any event, in breach of the Mellor duty to give reasons within a reasonable time of a request. However, Mrs Shaw's evidence as to her reasons for the negative screening opinion was still relevant and admissible in relation to the question of relief for the breach – always, of course, a matter of discretion in this court. He considered it was relevant, particularly, to the important issue of whether the court should exercise its discretion to quash the planning permission.

    I pause there to mark that, in relation to answers to (i), (ii), (iii) and (iv), Lewison LJ agreed with Foskett J's conclusions.

    v) If Mrs Shaw's evidence was not too late, was the judge wrong to permit the Appellant to cross-examine Mrs Shaw with a view to showing that the reasons given in her witness statement were an ex post facto justification of the decision? Yes. Here, Lewison LJ and Foskett J parted company. Foskett J had refused an application to cross-examine Mrs Shaw. Lewison LJ (at [48]-[59]) held that he was wrong to do so. Having referred, with approval, to the comments of Stanley Burnton LJ in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 ("Bancoult") at [14], to the effect that cross-examination in public law cases should be permitted "if cross-examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly", Lewison LJ continued (at [56]):

    "In our case the question of fact was whether Mrs Shaw's evidence was ex post facto justification of the decision to issue the negative screening opinion, or was an account of her actual reasoning process at the time. That was not an issue for the local planning authority to determine: it was a question for the court. The judge did not ask himself the critical question: what did justice require?"
    He thus considered that this was:
    "…one of those admittedly rare cases in which cross-examination was necessary in order for justice to be done and seen to be done…. In my judgment the judge approached the question of cross-examination in a way that was wrong in principle. Accordingly, I consider the judge's order cannot stand."
  67. Lewison LJ set out (at [57]) the areas of questioning which one would have expected of Mrs Shaw in "ordinary litigation", which Foskett J had (Lewison LJ held, wrongly) not allowed to be asked, namely:
  68. "(i) How did it come about that Mrs Shaw's analysis left no trace on the Council's file?
    (ii) Given that the screening opinion was issued on the same day as Mrs Shaw received CCW's comments, when was this analysis carried out and how long did it take?
    (iii) Why was it that in response to the pre-action protocol letter the Council was unable to provide [the Claimant's solicitors] with the details that Mrs Shaw spoke to in her witness statement?
    (iv) How was it that, a year and a half after the screening opinion, Mrs Shaw was able to remember in such detail what she said was her reasoning process at the time?
    (v) How did her evidence to the court square with the officers' recommendations to the Planning Committee, with the concerns that they expressed, and with their view in October 2012 that insufficient information had been provided to enable them properly to evaluate the environmental impact of the proposal?
    (vi) Was there not a real possibility that, rather than remembering what she actually did, Mrs Shaw was reconstructing what she would or should have done?"
  69. The matter was remitted to this court for the issue (i.e. whether Mrs Shaw's statement provided her contemporaneous reasons, or her ex post facto justification, for the negative screening opinion) to be determined with the benefit of cross-examination of Mrs Shaw, in the context of the exercise of the court's discretion in relation to relief on the Council's established breach of duty to give reasons within a reasonable time of a Mellor request. That was, consequently, the (or, at least, a) primary issue before me.
  70. At the hearing, Annabel Graham Paul appeared for the Claimant, and John Hunter for the Council.
  71. Relief: The Court's Discretion

  72. The Court of Appeal clearly considered that the issue of whether or not Mrs Shaw's statement provided her contemporaneous reasons for her negative screening opinion was material to (although not necessarily determinative of) the question of relief and, in particular, whether the court should order the quashing of the planning permission. Such an order would, of course, result in the application for planning permission being remitted to the Council for redetermination by a process that would include a lawful screening opinion.
  73. Despite the Court of Appeal's expressed view that the question of relief in this claim could not fairly and justly be determined without the cross-examination of Mrs Shaw, neither Mrs Graham Paul nor Mr Hunter was prepared to concede that the cross-examination of Mrs Shaw on the issue of whether the evidence in her statement was as to contemporaneous reasons or ex post facto justification was indeed necessary.
  74. Mrs Graham Paul relied upon authorities which caution against allowing additional reasoning for decisions to be sought, proferred or ordered, because of the inherent risks of rationalisation after the event, e.g. such cases as R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290 at [63] per Jackson LJ and Ioannou v Secretary of State for Communities and Local Government [2014] EWHC 3945 (Admin) at [51]-[52] per Ouseley J. She submitted that the court should be highly wary of condoning and encouraging a practice of authorities submitting late reasoning in EIA or other planning challenges, particularly as it may mean cross-examination of decision-makers becoming commonplace and public confidence in the planning system becoming undermined.
  75. Mrs Graham Paul conceded that, since R (Champion) v North Norfolk District Council [2015] UKSC 52 ("Champion"), previous Court of Appeal authority (such as Bateman), that suggested that any defect in EIA process amounting to a breach of European law should result in the automatic quashing of any subsequent grant of planning permission, were no longer good law. However, she submitted, Champion indicated that, where a defect in EIA process has occurred, the court may exercise its discretion to withhold relief where, and only where:
  76. i) the applicant had in practice been able to enjoy the rights conferred by the relevant European legislation, and

    ii) there was no substantial prejudice.

  77. She argued that the Mellor duty effectively comprises two distinct obligations.
  78. First, there is a duty to carry out a "specific evaluation" as to whether an EIA should be carried out (Champion at [51]). That must necessarily be contemporaneous with the screening decision. Cross-examination may indicate whether or not the contents of Mrs Shaw's statement were in fact "specific evaluation" made by her at the time, or simply what, with the benefit of hindsight, she would or might have said by way of reasoning. That is the issue identified by the Court of Appeal.
  79. However, second, the reasons for that "specific evaluation" must be communicated to the public "either in the decision itself or in subsequent communication made at their request" (Champion at [59]-[60]). Mrs Graham Paul submitted that nothing arising out of cross-examination could alter the fact that this right was breached in this case due to the Council's failure to provide any adequate evidence of any "specific evaluation" following the Mellor request and within a reasonable time. The Claimant has thus irreparably been denied the practical enjoyment of the rights conferred by the 1985 Directive, and he has thus been substantially prejudiced. Consequently, whatever evidence Mrs Shaw might give orally, the only effective relief in respect of the Council's established breach of European law would be the quashing of the planning permission. The court should therefore exercise its discretion in favour of quashing.
  80. However, I am unable to accept the full scope of that submission.
  81. In the context of another case in which it was said both that no screening opinion had been adopted and that the reasons given in support of a screening decision were in any event inadequate (R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin)), I recently said this with regard to the correct approach to relief in public law claims (at [73]):
  82. "I was referred to a number of cases as to the correct approach as to relief in public law claims. The conventional domestic position is that, where an administrative decision has been found to be unlawful, although usually the relief will include an order quashing the decision (see, e.g., Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at page 616F per Lord Hoffman), the court may exercise its discretion not to do so. In exercising that discretion, the court will take all the circumstances of a particular case into account; but it may be persuaded not to quash a decision because the breach of obligation was immaterial, i.e. the administrative decision would undoubtedly have been the same, even if the breach had not occurred. That approach has recently been confirmed as applying equally to cases in which the relevant obligation derives from European law (Walton v The Scottish Ministers [2012] UKSC 44; [2013] Env LR 16 at [139] per Lord Carnwath and at [156] per Lord Hope; Burridge v Breckland District Council [2013] EWCA Civ 228 at [89] per Davis LJ and at [116] per Warren J, Pill LJ apparently dissenting on this point; and R (Catt) v Brighton & Hove City Council [2013] EWHC 977 (Admin) at [142] per Lindblom J). As to approach, I consider myself bound by those authorities and, to the extent that they differ, I should not follow R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 or the minority in Burridge (although I am sceptical as to the extent those cases in fact sought fundamentally to alter the conventional test). Bound as I am, I should emphasise that I would have held that there is discretion to withhold relief even had I been left to my own devices. This court deals with matters in the real world, and should be slow to grant relief where the challenged decision would inevitably have been the same but for the breach of obligation, neither the claimant nor anyone else has suffered any real prejudice, and there is no other good ground for relief being granted."
  83. In Champion, Lord Carnwath JSC (with whom the other members of the Supreme Court agreed), more succinct and more eloquent than I, made clear that recent European authorities (such as Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) [2014] PTSR 311 ("Altrip")) have not altered the position. He said:
  84. "54. Having found a legal defect in the procedure leading to the grant of permission, it is necessary to consider the consequences in terms of any remedy. Following the decision in [Walton], it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice…
    [Lord Carnwath then referred to Altrip, and continued as follows.]
    58. Allowing for the differences in the issue raised by the national law in that case (including the issue of burden of proof), I find nothing in this passage [from Altrip] inconsistent with the approach of this court in the Walton case. It leaves it open to the court to take the view, by relying 'on the evidence provided by the developer or the competent authorities and, more generally, on the case file documents submitted to the court" that the contested decision 'would not have been different without the procedural defect invoked by the applicant'. In making that assessment it should take account of 'the seriousness of the defect invoked' and the extent to which it ahs deprived the public concerned of the guarantees designed to allow access to information and participation in the decision-making process in accordance with the objectives of the EIA Directive."
  85. The flaw in Mrs Graham Paul's argument is that it focuses excessively upon the validity of the screening opinion, rather than whether a flawed screening opinion led to a failure to conduct an EIA in circumstances in which an EIA ought to have been conducted, and accordingly undermined the planning process (see R (Berky) v Newport City Council [2012] EWCA Civ 378 at 22 per Carnwath LJ (as he then was)). Where development is not EIA development, members of the public of course still have the right to make representations to the planning inquiry; but there is no right to have an EIA assessment performed. Where a proper negative screening evaluation is made, but either it is not made public or reasons for the opinion are not given upon request, there is a defect in the EIA process, because that process requires publication and the giving of reasons on request. It makes those requirements to give members of the public an opportunity properly to consider and challenge the negative opinion, if minded to do so. Indeed, in the case before me, the Claimant was unable to mount an appropriate challenge to the negative screening opinion, because the reasons for it were withheld by the Council.
  86. However, where there is a proper evaluation which concludes that an EIA is not required, a failure to publish that opinion or reasons for it will often not be a material breach because, if the authority had published the opinion and reasons as it ought to have done, members of the public (whilst having the right to make representations at the planning inquiry) would still not have had any right to have an EIA assessment performed. Consequently, as a result of the breach, they have not lost any right to an EIA assessment in circumstances in which European law required one to be performed, nor indeed any other opportunity granted to them by European law, except the right to consider and (if appropriate) challenge the screening opinion in a timely manner.
  87. Mr Hunter performed a substantial review of the relevant authorities in respect of this issue. One case is, in my respectful view, worth particular consideration in this context.
  88. R (Richardson) v North Yorkshire County Council [2003] EWHC 764 (Admin) concerned regulation 21(1) of the 1999 Regulations, under which an authority is required to make available for public inspection a statement of reasons and considerations upon which a decision on a planning application which requires an EIA is based. In giving judgment, Richards J (as he then was) at [47], rightly indicated that the consequences of a failure to comply with a requirement to give reasons depend very much on the statutory context and the particular circumstances of the case. Having considered the relevant authorities, he concluded that:
  89. "The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of regulation 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation."

    In other words, whilst many breaches of public law duty will lead to a presumption that the resultant decision should be quashed – subject to the decision-maker showing the decision would inevitably have been the same and, now, section 31(3C) of the Senior Courts Act 1981 – in these circumstances, the presumption will or may be different. That analysis was approved on appeal ([2003] EWCA Civ 1860 at [43] per Simon Brown LJ).

  90. Mr Hunter submitted, with considerable force, that the same analysis applies to reasons for negative screening opinions under the 1999 Regulations. The Regulations, following the 1985 Directive, do not require reasons to be given with the opinion. Mellor requires them to be given on request. However, reasons are not part of the decision-making process. As with regulation 21(1), if the relevant authority has not given appropriate reasons within a reasonable time of request and before proceedings have been commenced, a breach of the Mellor duty should be capable in principle of being remedied by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.
  91. Consequently, in this case, the Court of Appeal's focus upon whether there was a proper contemporaneous evaluation by Mrs Shaw – and, if so, what that evaluation was – was, in my respectful view, entirely correct.
  92. For his part, Mr Hunter submitted that, even if, upon her cross-examination, I was persuaded that Mrs Shaw did not evaluate whether this was an EIA development at the time, but has now set out how she would have approached that evaluation, that would be sufficient to render it unnecessary to quash the planning permission, because the breach is still immaterial. If the permission were quashed and the matter remitted to the Council for redetermination, we now know that Mrs Shaw would give a negative screening opinion, and why. Indeed, because the Mynydd Mynyllod windfarm project has now been abandoned, the case for a negative opinion is even stronger. There is no other change in circumstances since 15 March 2012, and no basis for thinking that the new planning decision would be any different from the decision made by the Council's Planning Committee on 20 February 2013.
  93. I shall return to that submission, after I have considered Mrs Shaw's evidence.
  94. Mrs Shaw's Evidence

  95. Given the areas of cross-examination identified by Lewison LJ, the questioning of Mrs Shaw was always going to be extensive. In the event, she was the subject of substantial cross-examination on her statement, which lasted for more or less a morning.
  96. As I understand it, Mrs Shaw had not previously given evidence in court. She was therefore not an experienced witness. She said – and I accept – that she had not discussed her evidence or this claim with any of her colleagues, or the Council's legal representatives. In giving several of her answers, she clearly and innocently preferred truthfulness to giving a response which might have been considered better to have supported the Council's case. For example, she frankly said that she was unacquainted with Mellor and an authority's obligation to give reasons for a negative screening opinion on request: she followed the statutory scheme, in which there is no such obligation.
  97. However, inexperienced and lacking in what others might regard as sophistication as a witness as she was, Mrs Shaw was undoubtedly a very good witness. Where she did not know an answer, she frankly said so. As I have described, with equal frankness, she gave palpably true answers where the Council's case might have been better supported by something less. She gave her evidence modestly and compellingly; and I have no hesitation in accepting it as credible and truthful.
  98. Mrs Shaw said that the four requests for screening opinions in respect of renewable energy developments which she referred to the CCW were the first such requests she considered at the Council. The proposed development was a significant renewable energy development, and she recalled it as such. Despite the time that has past, she clearly remembered the Developers' request for a screening opinion – and how she dealt with it – well. She was concerned to adopt the right process, and asked one of her Senior Planning Officer colleagues for advice on consultation and procedure. However, she did not seek or receive any advice from colleagues or others on the merits of the requests, or the giving of reasons. She was well aware that the 1999 Regulations required reasons to be given where a positive screening opinion was given; and that the Regulations did not require reasons where the opinion was negative. As I have already indicated, throughout she was unaware of Mellor, and the requirement to give reasons for a negative opinion on request.
  99. She said that she visited the Site and, although she sought the advice of the CCW, on the basis of that visit, the statutory guidance (which she appreciated was indicative only), the applications (which she considered put forward "generic" reasons for an EIA not being needed, to which she consequently gave little weight) and her own experience, she was 99% sure that the screening opinion should be negative before she received the CCW's response. She had, prior to 15 March 2012, performed an analysis on paper; but that was not committed to electronic form and, as she was unaware of Mellor and no request had been received by December 2012, she destroyed those notes (and all of her other handwritten notes), probably before she went on maternity leave at Christmas 2012. She was on leave until October 2013. It was Council policy not to disturb staff on maternity leave, at all, unless they indicated it could do so. She did not give such an indication; and therefore the Council did not contact her.
  100. Although she did not formally return to work until the following month, on 12 September 2013 she went into work on a "stay-in-touch day". That day, she received a request from Nick Walters, saying that a claim had been received and could she make a statement as to whether she had taken into account cumulative effect when performing the screening opinion in March 2012. That was the only message, and instruction, that she got. She produced a draft statement that day, dealing with that issue. The statement indicated that she did an analysis of all relevant factors, but the statement focused on the matter upon which she had been asked to focus, namely cumulative effect.
  101. She accepted in cross-examination that, initially, she considered that, in respect of EIA screening, this was not a clear cut case. She said that, in March 2012 when she was considering it, the particular issues that concerned her were the landscaping and visual effect of the proposal, including particularly the cumulative effect of the proposed development when taken with the Braich Ddu windfarm and (if it went ahead) Mynydd Mynyllod windfarm. Given that the Braich Ddu turbines were already erected – and, she said, easily seen on her site visit – she was particularly focused upon them, and that is why she specifically referred to Braich Ddu in her email to the CCW. As set out in her witness statement, in March 2012 she concluded that, taking into account the effects of the proposal discretely and in combination with these other developments, the proposed development may result in some environmental effects but not likely significant effects. She took into account particularly the Braich Ddu development, and also considered the proposed Mynydd Mynyllod windfarm; but did not give the latter any great weight because no application for planning permission had been made in respect of it.
  102. In short, her statement of 1 October 2013 set out her contemporaneous reasoning.
  103. She said that her analysis was not on the file because it was handwritten; and, because she was unaware of Mellor (and consequently the possibility of the Council being required to give reasons for her negative screening opinion following a request), she destroyed those notes, probably prior to going on maternity leave in December 2012. At that time, she went through her desk and destroyed all of the notes she thought she would not require again. By then, of course, nine months had elapsed since her screening opinion, and no request for reasons had been received.
  104. She said that she was able to produce the opinion the day that the CCW returned to her because, by then, she was almost certain that her opinion was going to be negative prior to the CCW returning to her, she did not have to produce any reasons for her decision and 15 March 2012 (the day she received the CCW's response) was the last day upon which the opinion could have been given without an agreed extension.
  105. Her silence prior to September/October 2013 can be explained by her maternity leave, and the Council's policy of not disturbing those on such leave under any circumstances, as can why the Council was unable to produce what she said in her statement earlier. She was asked to deal with the matter on her first stay-in-touch day back, drafted a statement that day and signed it on her next visit to work on 1 October 2013. She said that the statement was in her own words, except the formal paragraphs at the beginning and end and the cross-references which were inserted for her.
  106. Mrs Shaw's maternity leave also explains Mr Walter's response to Mr Broughton on 30 January (see paragraph 30 above), made after Mrs Shaw had left for her leave and without recourse to her because of the Council policy not to contact those on maternity leave. Mr Walters therefore did not set out Mrs Shaw's reasons for the negative screening opinion, and he did not know whether she had taken into account the cumulative effect – and, if so, how – when he responded to Mr Broughton. He therefore simply expressed a view as to what (in his opinion) should have happened, rather than what did in fact happen. He said that that Mynydd Mynyllod should not have been taken into account, because it was not in-planning. That was not helpful; because Mrs Shaw did in fact take that potential development into account, albeit without attaching any great weight to it.
  107. Similarly unhelpful were the assertions in the Council's response to the pre-action protocol letter (see paragraph 40 above), and in paragraph 19 of the Council's summary grounds (see paragraph 42 above), that it was "inconceivable" that the author of the screening opinion did not have regard to cumulative effects. Each of those was again prepared without input from Mrs Shaw. They again described what a decision-maker would have done; not what Mrs Shaw in fact did.
  108. However, from her statement of 1 October 2013 and her oral evidence we are now able to ascertain how she went about the evaluation necessitated by EIA screening. As I have indicated, I have no doubt that Mrs Shaw was a credible and truthful witness. Mrs Graham Paul did not – indeed, could not – really suggest otherwise. Having heard Mrs Shaw be cross-examined upon these matters, I do not consider there is any real possibility that her statement sets out a rationalisation of her decision, as opposed to her contemporaneous reasoning.
  109. Discussion

  110. In my judgment, that finding of fact – that Mrs Shaw's statement accurately sets out the reasoning which she had in mind at the time she determined the negative screening opinion in March 2012 – is sufficient to dispose of the remaining issue in this claim. For the reasons I have given, although, as held by Foskett J and confirmed by the Court of Appeal, the Council was in breach of the Mellor duty to give reasons for a negative screening opinion within a reasonable time of a request, given that adequate reasons have now been given, this is not a case in which it would be appropriate to give substantive relief. As a result of that breach, the Claimant has not been deprived of any right or opportunity granted to him as a member of the public by European law; and he has suffered no prejudice in the planning process.
  111. Of course, that is not to say that these proceedings have been unnecessary – Mrs Shaw's statement was not served until after the claim had been issued and served – but any prejudice to the Claimant as a result can be dealt with by appropriate consequential orders in this claim. Indeed, the Court of Appeal has already ordered the Council to pay the Claimant's costs of both the claim and the appeal up to the date of the Court of Appeal judgment.
  112. I can deal with Mrs Graham Paul's other submissions relatively briefly.
  113. First, she submitted that it was relevant that the Council's own officers considered that environmental effects of the development (individual and cumulative) outweighed the planning benefits (see also the judgment of Lewison LJ at [57(v)] quoted at paragraph 49 above). However, with respect, that is not to the point. The officers were then considering the planning balance in the context of the substantive planning application. Mrs Shaw was concerned with the question of whether the development would likely have significant environmental impact in the context of EIA assessment. Those are questions which not only depend upon different criteria, they are of a fundamentally different kind (see, e.g., Bateman at [40] per Mummery LJ: Mummery LJ dissented in the conclusion, but the other members of the court evinced no disapproval of these comments which appear patently correct as a matter of principle).
  114. Second, I am afraid I was also unimpressed by Mrs Graham Paul's submission that, by not quashing the grant of planning permission, this court may in some encourage local planning authorities not to comply with the Mellor duty to give reasons on a request being made or otherwise be slack in performing their planning obligations. Although the grant of planning permission in this case has been upheld, I have no doubt that the entire experience of these proceedings will be an object lesson to the Council, and no doubt other local planning authorities, when faced with reasons requests in the future. Furthermore, this case has highlighted the need for authorities to keep a record of reasons for negative opinions on file, to avoid the difficulties which have arisen for the Council in this case. In any event, whilst it is important that the additional burdens are not placed upon local planning authorities prematurely, it is noteworthy that Wales is obliged to implement the 2011 Directive as amended by next year; and that requires decision-makers to give reasons for both positive and negative EIA screening opinions.
  115. Third, Mrs Graham Paul suggested that, unless planning permission was quashed in cases such as this, cross-examination of decision-makers would or might become "commonplace". However, I firmly disagree. As the authorities make clear, whether cross-examination of a decision-maker is required is a fact-specific issue. The Court of Appeal in this case did not suggest that it intended to alter the conventional approach to oral evidence in public law cases: indeed, it is clear from Lewison LJ's judgment that the court was merely applying well-established principles, as set out in (e.g.) Bancoult. Whilst, on the facts of this case, it was considered that the cross-examination of Mrs Shaw was necessary for the just disposal of the claim, such cases will in my view remain exceedingly rare; and, as the requirement for cross-examination turned on the unusual facts of this case, the citation of this case as a precedent in support of an application to cross-examine should, in my view, be positively discouraged. Such applications should remain exceptional.
  116. Fourth, Mrs Graham Paul submitted that, even if Mrs Shaw's statement set out her contemporaneous reasons in respect of cumulative effect, the Council's reasons are still inadequate, because they fail to deal with the balancing exercise in which cumulative effect played but only a part. For example, they do not expressly refer to ecological factors. Mrs Shaw frankly accepted in cross-examination that, at the outset of the exercise of considering the screening request, she was concerned by ecological issues, as well as visual and landscape issues.
  117. However, nor do I find substantial force in that. Paragraph 11 of Mrs Shaw's statement (quoted at paragraph 44 above) makes clear that her analysis did include "an assessment of the impact of the proposal on relevant environmental receptors, but in particular on the statutory designation, protected species and habitats, visual and landscape impact, and the impact on residential and public amenity". I accept that that is a broad statement; but it has to be seen in context. As I have explained, she was asked by Mr Walters to prepare a statement setting out whether she took into account cumulative effect. That is because the Claimant's case on the relevant ground – set out in both pre-action protocol letter and formal grounds – was that she had failed to take cumulative effect into account. That was the sole focus of the ground. The required level of detail in reasons for a screening opinion is a fact-specific question, depending upon the complexity of the issues to be considered in that particular case (Mackman v Secretary of State for Communities and Local Government [2015] EWCA Civ 716 at [20], per Sullivan LJ). Here, the thrust of the challenge was that Mrs Shaw had failed to take into account cumulative effect; or had failed to give reasons sufficient to determine that she had properly done so. That was the scope of the challenge. Foskett J found that all that was lacking by way of reasons was a statement that cumulative effects were taken into account. He dismissed all other grounds. There was no appeal from that part of his judgment, and there is nothing to suggest that the Court of Appeal considered he had erred on this point. Indeed, as Mr Hunter submitted, it is reasonable to infer from Lewison LJ's reasoning about the witness statement coming too late to "cure" the want of reasons and therefore prevent a breach as implying that, if it had come earlier (and had set out genuinely contemporaneous reasons rather than rationalisation), it could have done so. It is noteworthy that the Claimant has not sought any further reasons from the Claimant since the service of Mrs Shaw's statement in October 2013, the issue being whether that statement set out reasons or rationalisation. The reasons given by Mrs Shaw are, in my view, clearly adequate.
  118. Those, I believe, were the main strands of Mrs Graham Paul's other submissions.
  119. Finally, I return to Mr Hunter's submission that, even if Mrs Shaw's statement was found to be rationalisation, I should nevertheless not quash the planning permission. Given my finding of fact that her statement properly set out her contemporaneous reasons, it is unnecessary for me to determine this issue; and I decline to do so.
  120. However, whilst every case is necessarily fact-specific, it seems to me that the following propositions in relation to the giving of reasons in a negative screening case under the 1999 Regulations can be derived from principle and the authorities.
  121. i) A local planning authority is required to give reasons for a negative screening opinion within a reasonable time of a request, i.e. it bears the Mellor duty. Those must be the reasons in its mind at the time of the decision, and not an ex post facto justification. If it fails to give reasons within a reasonable time of request, it will be in breach of duty. Given the possibility of a request coming in perhaps months or even years after the EIA screening decision is taken, authorities will no doubt wish generally to maintain a note of the decision-maker's reasons for any negative screening decision, so that those reasons can be sent out if and when any request is made. Mrs Shaw said she did not keep her reasons only because she was unaware of the Council's Mellor duty.

    ii) Once proceedings are issued, whilst it will be too late for an authority to avoid a breach by providing reasons, if the authority thereafter provides reasons – and the court is persuaded that they were indeed the reasons in the Council's mind at the time of the decision – the court is likely to be slow to quash the planning permission. That is because it is unlikely that interested parties will have been denied any right or opportunity to participate in the planning process given by European law, or that anyone will have been materially prejudiced by the delay in providing reasons. In these circumstances, the court may, however, penalise the authority in costs.

    iii) If no contemporaneous reasons are forthcoming (including, of course, a situation where the court rejects the submission that reasons put forward were contemporaneous), then in accordance with usual public law principles, the planning permission should be quashed unless the authority can show that the decision would inevitably have been the same if the breach had not occurred; or, if remitted, the decision would now be the same. The burden is upon the authority, and whether it has discharged it will be dependent upon the evidence, particularly the evidence they have adduced in those issues. The court will be wary of the possibility that, in producing such evidence, the authority may be under some pressure, conscious or unconscious, to maintain the planning permission decision.

    Conclusion

  122. For those reasons, subject to submissions in relation to the form of the order, I would propose allowing this judicial review; but otherwise restricting substantive relief to a declaration that the Council was in breach of its Mellor duty to give reasons for its negative screening decision within a reasonable time of the Claimant's request.


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