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R (Trevone Objectors Group) v Cornwall Council [2013] EWHC 4091 (Admin)

DATE: 20 Dec 2013

This was a judicial review claim, brought with the permission of Bean J., by a local residents’ group against the grant of planning permission by Cornwall Council for a 15-dwelling affordable housing development on land next to the village of Trevone.

The site was within the Cornwall Area of Outstanding Natural Beauty, defined in national planning policy guidance as “the highest status of protection in relation to landscape and scenic beauty”. The Council’s Local Plan emphasised the importance of the AONB’s landscape and went on to state at para. 5.31 that “all major development proposals in an AONB should be accompanied by an environmental assessment”.

Before granting permission, the Council issued a screening opinion ruling that the development was not likely to have significant environmental effects and therefore did not require environmental impact assessment pursuant to the EIA Directive 85/337/EEC and the domestic EIA Regulations implementing them. The screening opinion noted that there would be a “high” probability of “permanent” harm to the agricultural land of the AONB in respect of which “the possibility of reversibility… is low”. However, it concluded that such harm would be “localised”, i.e. “constrained to an area that is small in relation to the overall AONB designation” and “will not be excessive to the wider character of the area”.

The Officer’s Report recommending that permission should be granted, which was written by the author of the screening opinion, concluded that the Development would have “an adverse landscape impact to an AONB” and would be “highly visible from most nearby public vantage points, including the adjoining roads and public footpaths”, but that the alleged affordable housing benefits of the development would outweigh that harm, “albeit on fine balance”. The Council’s Planning Committee accepted that recommendation and granted permission. Their formal reasons for granting permission acknowledged that there would be a breach of the Local Plan Policy ENV1 which seeks to resist development which would “adversely affect the character and amenity” of the AONB.

In a reserved judgment dismissing the claim, HHJ Birtles (sitting as a Deputy High Court Judge) held:

1.  The reference to “major development” in para. 5.31 of the Local Plan was not to be read as a reference to the concept of “major development” in the Town and Country Planning (Development Management Order) 2010, or its predecessor legislation, in which it is defined as including residential development of more than 10 dwellings. It was instead a subjective concept requiring an assessment of fact and degree by the decision-maker. It followed that para 5.31 did not require an EIA for the development either as a matter of domestic or EU law.

2.  Although there was no reference in the decision documentation to the precautionary principle, and the Council’s evidence had denied its applicability to the decision, there was nothing that the precautionary principle could have added to the decision because the facts were sufficiently certain to allow definitive conclusions to be reached.

3.  Had the screening opinion, treated the size of the site as a proportion of the AONB as sufficient in itself to mean that the development would not have significant environmental effects, that may have been unlawful. But the proper interpretation of the screening opinion was that it did not do that, but instead gave greater weight to the size of the development than to other factors, which was a permissible approach.

4.  The conclusion that the development would not have significant environmental effects was not irrational.

Charles Banner appeared for the Trevone Objectors Group, instructed by DAC Beachcroft LLP.