Environmental impact assessment

March 17th, 2016 by James Goudie KC

When a local planning authority (“LPA”) issues a screening opinion stating that no environmental impact assessment is required, reasons have to be given, in accordance with the ECJ decision in Mellor.  Hickinbottom J in R (Jedwell) v Denbighshire County Council [2016] EWHC 458 (Admin) cautioned that every case is necessarily fact specific, but stated, at paragraph 94, that the following propositions in relation to the giving of reasons can be derived from principle and the authorities:-

  1. A LPA required to give reasons for a negative screening opinion within a reasonable time of a request;
  2. Those had to be the reasons in its mind at the time of the decision, and not an ex post facto justification;
  3. Given the possibility of a request coming in perhaps months or even years after the EIA screening decision was taken, LPAs would no doubt wish generally to maintain a note of the decision-maker’s reasons for any negative screening decision, so that those reasons could be sent out if and when any request was made;
  4. Once proceedings are issued, whilst it would be too late for a LPA to avoid a breach by providing reasons, if the LPA thereafter provided reasons, and the Court was persuaded that they were indeed the reasons in the LPA’s mind at the time of the decision, the Court was likely to be slow to quash the planning permission;
  5. If no contemporaneous reasons were forthcoming (including, a situation where the Court rejected the submission that reasons put forward were contemporaneous), then in accordance with usual public law principles, the planning permission should be quashed unless the LPA could 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.

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