One of the most litigious aspects of planning surrounds the operation of the Environmental Impact Assessment regime. It has proved to be particularly fertile ground for claimants and, for the developer, the consequences of a successful judicial review can often be dramatic. The law is currently found in the Town and Country Planning (Environmental Assessment) Regulations 2011 which implements the EU’s Council Directive 85/337/EEC. It was originally introduced into domestic law in 1988 but the regime has not been made for an easy relationship between planning and EIA with numerous disputes ending up in court. To some, compliance with the requirements of the Directive and the domestic regulations has become akin to a legal obstacle course. It has not been helped by the fact that some local planning authorities have failed properly to administer the regime which, in turn, has introduced an element of nervousness into the system. This has been heightened by the decision of the House of Lords in Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603 that a breach of the Directive required nothing less than the nullifying of any action based on it. Thus any established breach of the EIA process ought to result in the planning permission being quashed.

A recent case, however, suggests that the courts may be modifying that extreme approach. In R (oao Peter Gibson) v Harrow LBC and Parish of St George Headstone [2013] EWHC 3449 (Admin) the court was faced with a judicial review of a planning permission granted by the London Borough of Harrow where a local resident argued that the decision was flawed because of an alleged failure to screen the development for EIA purposes and had failed to place a copy of an earlier screening decision on the planning register.

The history behind the development was a tortuous one. At every stage it had been vehemently opposed by a group of local residents, including an unsuccessful attempt to register the land as a village green. The applicant was the local church that wished to raise funds for works to the church by selling a redundant private sports field for development for a modest amount of residential development (including a sizeable proportion of affordable homes) and the provision of a new area of public open space. An original application for a greater number of units had been refused. The applicant came back with a revised scheme for a reduced number of homes. It was refused by the local planning authority. An appeal was dismissed, following a hearing, on a technicality to do with the ability to secure the community benefits. A third application for the same development was submitted. It was screened and declared not to be EIA development. The screening decision was placed on the planning register in connection with that application. The application was refused. It was also refused on appeal following an inquiry, again on purely technical grounds to do with the associated planning obligation. However the inspector awarded the applicant costs against the local planning authority because the principle of the development had already been accepted by the first appeal inspector and so it had acted unreasonably in refusing the application for similar reasons to those already rejected.

Shortly after the second appeal decision the applicant submitted a fourth application for identical development but without the defect in the planning obligation. Not surprisingly the local planning authority this time resolved to grant planning permission. At the very end of the three month time limit the claimant challenged that decision. The two main grounds of challenge were based on breaches of the EIA Regulations. First it was argued that there had been a failure to screen the application and second that there had been a failure to place the screening direction on the planning register.

Mr Justice Sales held that, despite a failure of the local planning authority to screen the particular housing development, the failure was not unlawful because a previous application for identical development had been screened and therefore the development had complied with regulation 7 of the EIA Regulations as the development in question had been screened albeit in relation to the earlier application. The judge also agreed that the local planning authority’s failure to place the earlier screening decision on the planning register in relation to the later application had caused no substantial prejudice to the claimant and so he refused relief, relying on the Supreme Court decision in Walton v The Scottish Ministers [2012] UKSC 44. The claimant’s other grounds of challenge based on adequacy of reasons, were also roundly rejected.”