The High Court has recently confirmed in R (Jedwell) v Denbighshire CC and others  EWHC 458 (Admin) that a failure to give adequate reasons for a screening opinion does not automatically give rise to a presumption that a planning permission should be quashed.
The claim involved an application to quash a planning permission granted in July 2013 for the construction of two 46 metre-high wind turbines in North Wales. The development had previously been the subject of a negative screening opinion, adopted in 2012, which concluded that EIA was not required because it was unlikely to give rise to significant effects on the environment.
Following the resolution to grant permission in 2013, the claimant’s solicitors sent a pre-action letter challenging the resolution on various grounds, including that the officer conducting the screening exercise had not taken into account cumulative effects. The local planning authority replied stating that it was inconceivable that such effects had not been taken into account and pointed out that there was no duty in Wales for reasons to be given with the screening opinion – such reasons were only required following a request (pursuant to the case of R (Mellor) v SSCLG  Env LR 18). The claimant’s solicitors replied asking for “contemporaneous reasons” – to which the authority replied stating that it had searched the file and had nothing to add to its earlier response. The screening officer herself was not contacted as she was on maternity leave at the time.
The claimant subsequently issued a claim for judicial review. Whilst other grounds of challenge failed completely, the High Court held that the authority had been in breach of its EU law duty to give reasons following the request. Nevertheless, the judge (Foskett J) held that this breach had been cured by the production of a witness statement by the screening officer which confirmed that she had taken them into account. The claimant appealed to the Court of Appeal which held that the judge should have allowed the officer to be cross-examined on her statement. The case was then remitted to a different judge in the High Court (Hickinbottom J) for cross-examination and a decision on remedy. Following a further hearing, he concluded that the officer had in fact taken into account cumulative effects and declined to quash the permission, instead merely granting a declaration that the authority had been in breach of its EU law duty to give reasons upon request. The judge accepted the argument of the authority that a breach of a duty to give reasons will not necessarily lead to a presumption that a decision must be quashed where the duty arises separately from the relevant decision-making process and the evidence shows that it was in substance lawful.
John Hunter acted for the developer in the first High Court hearing and in the Court of Appeal and for the developer and the local planning authority in the second High Court hearing. Jonathan Easton acted for the local planning authority in the first High Court hearing and in the Court of Appeal.
A copy of the judgment is available here
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