In this judicial review, HHJ Birtles (sitting as a Deputy Judge of the High Court) considered a challenge to a grant of planning permission by Cornwall Council for residential development in an Area of Outstanding Natural Beauty. The four grounds of challenge were:
i) Failure to have proper regard to a policy of the Development Plan concerning environmental assessment;
ii) Failure regarding the precautionary principle;
iii) Legal misdirection regarding size of development and EIA screening;
The first challenge centred around a policy of the North Cornwall Local Plan, which stated that “all major development proposals in an AONB should be accompanied by an environmental assessment”. The Defendant had not required an environmental assessment. The Claimant argued that “major development” should have the same meaning as in the Town and Country Planning (Development Management Procedure) Order 2010, pursuant to which a residential development is a “major development” if it relates to ten dwelling houses or more.
HHJ Birtles rejected this submission, finding that there was no definition of “major development” in the Local Plan, and it was not appropriate to incorporate the definition from the DPMO. “Major development” did not have a consistent meaning in planning law, and defining it as ten dwelling houses or more would be inconsistent with the rest of the Local Plan. Absent a definition in the development plan, the meaning of “major development” would be a matter of planning judgement.
The learned Judge also found that there had been no breach of the precautionary principle, also holding that even if permanent and irreversible harm would be caused did not mean that an EIA was automatically required.
The third ground of challenge was that the Defendant had treated the size of the proposed development as a knock-out argument against it being EIA development, but HHJ Birtles disagreed on the basis of the wording of the Screening Opinion.
Regarding rationality, the Claimant accepted that the correct standard was Wednesbury, although reserved the right to argue on appeal that the compliance of the Wednesbury test with the EIA Directive was no longer acte claire after the decision of the Aarhus Convention Compliance Committee in Port of Tyne. The arguments that the decision was irrational were considered in turn (rather than cumulatively) and rejected.
This decision reinforces the difficulty of challenging negative screening opinions, after the decisions of the Court of Appeal setting the threshold for substantive review at Wednesbury unreasonableness.
Charles Banner, instructed by DAC Beachcroft LLP, acted for the Claimant.