In this article Chris Tofts, Partner at Stephens Scown LLP, considers a recent case in which the High Court had to examine the implications for a Mineral Planning Authority (‘MPA’) granting planning permission before the receipt of an EIA screening direction from the Secretary of State. R (on the application of Silke Roskilly v Cornwall Council & others [2015] EWHC 3711 (Admin)[1].
In this case Mr Justice Dove had to consider the application of regulation 3(4) of the Town and Country Planning (Environment Impact Assessment) Regulations 2011 (‘the Regulations’), which prohibits the grant of planning permission for EIA development unless the MPA has first taken environmental information into consideration. The High Court considered whether the prohibition contained in regulation 3 (4) applies in circumstances where a development has been negatively screened by the MPA and then granted permission whilst a request for a screening direction from the Secretary of State is still outstanding. Is the permission rendered unlawful if the screening direction subsequently confirms that the development is ‘EIA development’?
The case focussed on a planning application for infrastructure required to recommence working at a dormant gabbro quarry, within an Area of Outstanding Natural Beauty, situated on the Lizard Peninsula in Cornwall. The quarry benefited from a legally valid ROMP permission but a condition of the ROMP withdrew mineral permitted development rights which otherwise permit the installation of some of the buildings, machinery and structures proposed. The proposed development included a fuel storage area, office, processing plant, explosives store and fencing.
Whilst the Regulations require that the development should have been screened three weeks after receipt of the application, it was not screened until four months later and then only following a prompt from the Claimant (a local resident and organic farm business owner). The MPA negatively screened the application the following day, considering that the application be viewed in isolation, when in reality, it was an integral part of a much more substantial development.
Disagreeing with the MPA’s screening opinion, the claimant sought a screening direction from the Secretary of State. On the very same day the planning committee (in full knowledge that a screening direction had been requested) resolved to approve the development and the planning decision was issued the next day. The LPA chose not to defer issuing the permission until the decision on the screening direction was known. Subsequently the Secretary of State published his screening direction confirming that the proposed development was ‘EIA development’.
The MPA and applicant sought to argue that the Secretary of State’s decision on the screening direction was flawed, but Mr Justice Dove agreed there was a clear functional link between the application and the revival of the quarrying operation. Therefore a wider perspective had to be considered being the commencement of mineral operations rather than the individual structures themselves. Furthermore, neither the applicant nor the MPA had sought to bring a legal challenge to the Secretary of State’s direction.
Unusually, permission for Judicial Review was granted by the High Court for the challenge to proceed ‘out of time’ since it was accepted that it was not until the positive screening direction was received by the Secretary of State that the Claimant had all of the necessary information to bring her claim. It was not therefore inappropriate for her to await the outcome of that process before commencing proceedings.
Mr Justice Dove had to make a decision on the material before him, namely an unchallenged direction from the Secretary of State confirming the proposal was EIA development; together with the hard letter of the Regulations. The judge remarked that there was nothing contained within Regulation 4(3) to conclude that the Secretary of State’s jurisdiction crystallised at the point of the LPA’s grant of permission. The planning permission was found to be unlawful pursuant to Regulation 3(4) because it was not accompanied by environmental information, and the permission was quashed. Whilst the MPA is not precluded from granting permission, it ran the risk that if that direction was positive it would then have granted a planning permission which was infected with illegality. Mr Justice Dove continued and stated that no reasonable LPA, knowing at the time they formed a resolution to grant planning permission that there was an outstanding request of the Secretary of State to make a determination on a screening direction, would proceed to grant planning permission without knowing the outcome of that screening direction process.
Evidently this case has an unusual matrix of facts; had the MPA screened the application in accordance with the timeframe set out in the Regulations the screening direction is likely to have been received prior to determination of the application. Where MPAs follow the Regulations and give due regard to the totality of the effects that stem from a proposed development it is doubtful the same result would occur.
In many instances mineral operators will in any event prepare the majority of the information required in an environmental statement such that with only a little additional information any prospect of a challenge on EIA grounds is significantly diminished. It is worth recalling the judgment of Lord Carnwath in R (on the application of Champion) v North Norfolk District Council and another [2015] UKSC 52[2] in the Supreme Court: the applicant “may feel in retrospect that it would have been better if they had prepared an environmental statement under the EIA Regulations on their own initiative rather than simply relying on the negative opinion of the planning officer”.
The case reiterates the need for MPAs to ensure they adhere to EIA procedures and for mineral operators to satisfy themselves that the approach of the MPA is lawful.
Where a request for a screening direction from the Secretary of State is pending, MPAs are now on notice that they risk their decision being found to be unlawful should the Secretary of State disagree with their assessment of whether the proposal is EIA development.