R (Catt) v Brighton and Hove City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,MR JUSTICE COLLINS,SIR THAYNE FORBES |
| Judgment Date | 22 June 2009 |
| Neutral Citation | [2009] EWHC 1639 (Admin),[2006] EWHC 1337 (Admin) |
| Date | 22 June 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8670/2005,CO/6607/2008 |
[2006] EWHC 1337 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Collins
Case No: CO/8670/2005
William Upton (instructed by Buxtons) for the Claimant
Mary Macpherson (instructed by Brighton & Hove City Council) for the Defendants
Jonathan Clay (instructed by DMH Stallard) for the Interested Party
Hearing dates: 11 May 2006
The claimant lives next to Withdean Stadium in Brighton which has, since 1998, been the home of the Interested Party (IP). Before that, the stadium was and had since 1955 been used for athletics. Before that, it had been a tennis club. The IP has for some time been seeking to establish a stadium on an out of town site, since it has been recognised that Withdean Stadium is unsuitable because it is in a residential area and its use gives rise to transport problems. A site had been located at Falmer, and, following a call-in, after some delay the First Secretary of State granted planning permission. Unfortunately, it seems that that permission was legally flawed since I was informed that a challenge has been brought which is not going to be contested. The only matters in dispute are the precise details of any consent to judgment.
Recognition of its unsuitability has led to temporary permissions to commence and to continue the use as a football stadium for the IP. In 1998, permission was granted until 30 June 2001. It was clearly envisaged that the use would not continue beyond that date. However, the IP was unable to find an alternative home and the use of the stadium continued. In November 2002, a further temporary permission was granted retrospectively until 30 June 2003. That permission authorised the provision of a further 960 seats.
Neither of those permissions received an Environmental Impact Assessment (EIA). Leading counsel had advised that such an assessment was not needed for the initial permission, which included the erection of floodlighting columns, and that advice was assumed to be valid for the second. No legal challenge was brought or threatened.
In February 2003, the defendants decided in principle to approve the IP's application to continue the use until 20 June 2005, subject to the implementation of a s.106 agreement. That application included a further 1966 seats, bringing the total to some 9000, in a new permanent stand, the extension of existing stands, new changing rooms and the relocation of a hospitality unit. The expansion was required because the IP had had considerable successes and had won the second division championship in 2002. This had meant promotion to the then first division and has in its turn resulted in a greater demand for seats. Sadly, the IP has just been relegated. Following the conclusion of a s.106 agreement, planning permission was finally granted in October 200The defendants assumed that no EIA was required having regard to the advice given in 1998. That assumption was wrong and, when a legal challenge was brought, the defendants consented to judgment and accepted that it was necessary to have considered whether the proposed development would have significant environmental effects.
On 4 March 2005 it was decided that no EIA was required since a screening opinion, which the defendants adopted, concluded that the proposed development would not result in any significant effects on the environment. That decision was made public. It was challenged in correspondence and it was contended that the defendants should not grant permission unless an EIA was obtained. The defendants did not accept the criticisms and on 18 May 2005 a decision was made in principle to allow the IP's use of the stadium to continue until July 2008. On 20 July 2005 the final grant of permission was made. The necessary s.106 agreement had been signed on 19 July 2005 and a Road Traffic Order, designed to assist in regulating traffic to avoid congestion on match days, was made on 20 July.
This claim was lodged on 10 October 2005. In it the claimant seeks to quash the grant of planning permission on the grounds that the screening opinion was flawed and an EIA was needed. In addition, it is contended that there have been failures to determine the application in accordance with relevant development plans and to give adequate reasons for the grant. The errors which it is said flawed the screening opinion are also relied on as failures to take account of relevant or to ignore irrelevant considerations.
In addition to resisting the claim on the merits, the defendants and the IP relied on delay. The IP needed to carry out the development as soon as possible following the formal grant of permission in order to be able to have its benefit for as much of the season which commenced in August 2005 as possible. Work was in fact commenced on 25 July 2005. It has now been, as I understand it, completed at considerable expense. In the circumstances, it is obvious that there will be prejudice to the IP if the permission is quashed and the ability to take advantage of the expansion of seating and the other improvements in the stadium is or may be lost. Because of the issues raised in relation to delay, I decided that there should be an oral permission hearing with the substantive claim to follow immediately if permission was granted. Since it is accepted that what is likely to determine whether delay should prevent relief if otherwise the claim would succeed is the extent of prejudice to the IP, I indicated in argument that I was minded to grant permission. All other procedural steps were waived and accordingly I am dealing in this judgment with the substantive claim. I consider delay in the context of s.31(6) of the Supreme Court Act 1981.
Since it is central to this claim, I must set out the legal requirements in relation to EIAs. The procedure was introduced to implement Council Directive (85/337/EEC) of 27 June 1985, which requires that "development consents for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of those projects has been carried out". A recital of the Directive provides:-
"� the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life."
The relevant domestic legislation is now contained in the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 199EIA developments are identified in Schedules 1 and 2. Those within Schedule 1 are presumed to be likely to have a significant effect on the environment so that an environmental statement is needed for them. Those within Schedule 2 will only require such a statement if they are "likely to have significant effects on the environment by virtue of factors such as [their] nature, size or location" � see Regulation 2(1). The development in this case falls within Paragraph 10(b) (an urban development project, including the construction of a sports stadium with an area exceeding 0.5 hectare) combined with Paragraph 13(a) (any change to or extension of a development listed in the Schedule where that development is already authorised [or] executed � and the change or extension may have significant adverse effects on the environment).
If a development proposal is put to a planning authority which could require an environmental statement, the authority must decide whether it does. This will mean in relation to a Schedule 2 development deciding whether it is likely to have significant effects on the environment. The authority must produce what is called a screening opinion which will decide whether the development is indeed EIA development so that the applicant must supply an environmental statement. Schedule 3 to the Regulations sets out what are described as the selection criteria for screening Schedule 2 developments. They include its cumulation with other development and pollution and nuisances which may be caused by it. Its location must be considered and the environmental sensitivity of the area if, for example, it is densely populated must be taken into account.
If the screening opinion persuades the authority that it is EIA development, the applicant has the right to apply to the Secretary of State who must then make a screening direction, which will either uphold or reverse the authority's opinion: see Regulations 5(3) and (4) and 7(1). If the screening opinion decides that the development is not EIA development and is adopted by the authority, the application will be considered on its planning merits without any environmental statement. The Regulations do not provide any third party with any rights of appeal against that decision and so the only remedy available is judicial review.
The question was raised whether if an authority adopts a screening opinion that a development is not EIA development, it can change its view before granting planning permission and decide that it is. This question was answered by Richards J in R(Fernback) v Harrow LBC [2002] Env. LR 10. He made the point that the fundamental provision in the 1999 Regulations was the prohibition in Regulation 3 on the grant of permission pursuant to an EIA application without taking the...
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