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Articles Environmental Law 18th Jan 2016

Environmental Impact Assessment and reasoning in screening opinions: Jedwell v Denbighshire County Council & Others

The case of Jedwell v Denbighshire County Council and others explores some of the legal and procedural requirements relating to Environmental Impact Assessment screening opinions.

A screening opinion will set out the Local Planning Authority’s view as to whether a proposed development should be subject to Environmental Impact Assessment (EIA). EIA will be required either because the proposal is of a type that will always require such assessment or because the proposal is likely to have significant environmental effects due to, for example, its characteristics or location. 

The facts of the case

In 2013, Denbighshire County Council granted conditional planning permission for the erection of two wind turbines within an area that had been evaluated as having a high visual and sensory aspect of regional importance. In 2012, the LPA had adopted a screening opinion stating that no EIA was required. A local resident, J, requested reasons for the negative screening opinion from the LPA. No (or inadequate) reasons were given to J and so he sought to challenge the LPA by way of judicial review arguing that the reasoning in the screening opinion was inadequate and therefore the subsequent grant of planning permission was invalid.

The High Court dismissed the claim for judicial review and J appealed to the Court of Appeal. The Court of Appeal upheld J’s complaint.

The difference in law between England and Wales

It is significant in this case that the LPA is Welsh.

In England, the EIA process is governed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, which provide that reasons must be given whether the screening opinion is positive (that is, an opinion that EIA is required) or negative (an opinion that EIA is not required). Those reasons must be given in written statement accompanying the screening opinion.

In Wales, the process is governed by older (1999) Regulations which only require reasons to be given for a positive screening opinion. However, caselaw has established that there is an obligation under EU law to give reasons for a negative screening opinion in any event. In Jedwell, the Court of Appeal reaffirmed the requirement for Welsh LPAs to give reasons for a negative screening opinion if requested, notwithstanding the absence of an express requirement in the 1999 Regulations.

The extent and timing of reasons

The Jedwell case has confirmed and elaborated on the earlier case of R (Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 18, which explored how and when LPAs are expected to deliver their reasons for a screening opinion.

Content

It has long been established that, while reasons do not have to be extensive, they must be sufficient to explain the LPA’s thinking. The reasons must enable interested parties to observe that proper and considerate deliberation has been given to the possible environmental impacts of the development and to understand the reasons for the decision.

In Jedwell, the court concluded that the screening opinion contained only the statement of a conclusion and no reasoning at all. The court said, “A reader of the screening opinion could ascertain what decision the Council had made but not why it had made it.”

The court went on to emphasise that the LPA must demonstrate it has “actually determined whether EIA assessment was needed”. The LPA was criticised for wholesale reliance on the views of consultees whereas “it needed to demonstrate that it had applied its own mind to the relevant questions.” LPAs in other cases have similarly been criticised for simply adopting the applicant’s own reasoning or that of external consultants – again without appearing to have applied its own mind to the issues.

Timing

At EU level, it has been said that the statement of reasons for a measure must in principle be communicated to the person concerned at the same time as the measures that adversely affects them. This would seem consistent with the position under the Regulations applicable in England which, as we have said, require the statement of reasons to accompany the screening opinion.

For cases under the 1999 (ie Welsh) Regulations, though, the court was prepared to take “a more generous attitude”, indicating that reasons should be supplied within a reasonable time of being requested and that a breach of the obligation to give reasons could not arise until a reasonable time had elapsed. The court also saw no reason to conclude that the LPA should be limited to a single statement of reasons and that it might be possible to give further reasons in due course.

Can a LPA cure the deficiency of reasons through a witness statement?

In Jedwell, the LPA sought to cure its failure to give reasons by setting them out in a witness statement from the planning officer who gave the screening opinion. The High Court accepted this as a legitimate approach but the Court of Appeal disagreed, on the facts of the case.

The Court of Appeal noted that, before J had issued judicial review proceedings, the LPA had written to him advising that it had nothing more to add to the reasons it had already given. By contrast, the witness statement, served after proceedings had commenced, sought to add a lot more reasoning to the explanation already given. There were a number of additional difficulties with the statement, including reliance on consultation responses which had been received after the date of the screening opinion and which could not, in fact, have played any role in the Council’s reasoning. The case leaves open the possibility that a witness statement may cure defects in reasoning, but in the right circumstances and provided the statement is produced before the issue of proceedings.

An LPA may well know whether its screening opinion is likely to be challenged and so may have time to produce its statement of reasons before a formal claim is issued. However with only a 6 week limitation period for judicial review in planning cases and the likelihood of a very short period to respond to any pre action protocol letter (or even the risk that no such letter of claim is issued), there could be significant practical difficulties in preparing a witness statement.

The recommended approach is for an LPA to keep a written record of its reasons when a negative screening opinion is given, so that those reasons can be produced immediately on request. Certainly, providing a full statement of reasons should not be left to the late stages of any challenge and the witness statement approach should only ever be relied on as a last resort. Either way, it will be important for the reasons given to sit comfortably with any contemporaneous documents and to articulate the planning officer’s thought process at the time the screening opinion was reached. A screening opinion arrived at on wholly inadequate reasoning will not be saved by ex post facto rationalisation.

Conclusion

By May 2017, EU Member States are required to implement a new (2014) Environmental Impact Assessment Directive. Implementation is expected to result in significant changes to the EIA process in both England and Wales, including requests for, and the delivery of, screening opinions.

We will address these changes in future bulletins but if you would like to discuss them in the meantime, please do not hesitate to contact one of the team.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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