England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London, WC2
		30th June 2004

Wednesday, 30th June 2004
1. LORD JUSTICE LAWS: This appeal is brought by the unsuccessful claimants, Younger Homes (Northern) Limited, against the decision of Ouseley J given in the Administrative Court on 26th November 2003 in proceedings pursuant to section 288 of the Town and Country Planning Act 1990. The learned judge below declined to quash a planning permission which had been granted by the respondent First Secretary of State. Permission to appeal was refused on consideration of the papers by Buxton LJ on 12th January 2004, but granted by Maurice Kay LJ and Sir Martin Nourse after a hearing on 18th February 2004.
2. To introduce the case, I can do no better than set out the first two paragraphs of Ouseley J's judgment:

"1. On 23rd July 1999 a group of developers sought planning permission for a predominantly retail development with a swimming pool and car parking on a 3.777 hectare site in Brighouse, Calderdale, upon which stood substantial redundant agricultural foodstuff mills and silos. In May 2000, the application was called in and, following an Inquiry in January 2001, the First Secretary of State wrote to the parties in August 2001 saying that he was minded to grant planning permission subject to an agreement under section 106 of the Town and Country Planning Act 1990, which tied the development to certain infrastructure improvements. In March 2002, one of the landowning developers sold its landholding, which was a substantial part of the site, to the present Claimants. They are housebuilders who wished to develop the site or their part of it for a residential scheme. The First Secretary of State refused their request that he reopen the inquiry. The section 106 agreement was eventually signed by the other developers and, on 14th November 2002, the First Secretary of State finally issued the planning permission.

2. The Claimant challenges that decision under section 288 of the Town and Country Planning Act 1990 on the grounds that the First Secretary of State failed to make or to consider making a screening direction pursuant to regulations 6 and 8 of the Town and Country Planning (Environmental Impact Assessment) England and Wales Regulations 1999, SI 293. These give effect to the Environmental Assessment Directive 1985 as amended in 1997. The Claimant contends that reliance by the First Secretary of State for these purposes on any apparent screening opinion of the Calderdale Metropolitan Borough Council, the Local Planning Authority, given in early August 1999 was ineffective because, for a variety of reasons, that screening opinion was unlawful. Hence the planning permission was not within the powers of the 1990 Act and fell to be quashed. In the absence of a valid screening opinion, the obligation to subject development likely to have a significant effect on the environment to an environmental impact assessment could not be fulfilled. The Claimant expects that, if not quashed, the planning permission will become the basis for compulsory purchase of its interests."

3. In order to understand the material history and the issues in the case, it is convenient first to refer to the relevant legislation.
4. There being no issue as to the efficacy of the transposition of the European measure into English law, I need not set out provisions contained in the Environmental Assessment Directive. I may turn at once to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
5. Regulation 2(1) defines "environmental impact assessment application" as an application for planning permission for environmental impact assessment development. "Environmental impact development" means either Schedule 1 development, or Schedule 2 development which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. It was and is common ground that the development in question here was Schedule 2 development, and I need not go into the details of that. It was not however agreed that the development would have any significant environmental effects within the meaning of the regulation.
6. Regulation 3(2) prohibits the planning authority or the Secretary of State from granting planning permission pursuant to an application to which the regulation applies unless the decision maker has first taken the "environmental information" into consideration. The environmental information means an environmental statement, which has a special definition, and associated procedures. Regulation 3 applies by force of regulation 3(1) to every environmental impact assessment application. As Ouseley J observed at paragraph 5 of the judgment:

"In order for the obligation in regulation 3(2) to work, it is necessary that there be a system in place for considering whether any application which falls within Schedule 2 is also EIA development because it is likely to have significant environmental effects."

The Regulations indeed provide such a system. I should first set out the definition in regulation 2(1) of "screening opinion": "a written statement of the opinion of the relevant planning authority as to whether development is EIA development". "Screening direction" means: "a direction made by the Secretary of State as to whether development is EIA development".

7. The application in this case had, as I have said, been for Schedule 2 development. It had not when submitted to the local planning authority been the subject of either a screening opinion or a screening direction and it had been submitted without an environmental statement. In circumstances such as those, in the ordinary way regulation 7(1) provides that:

"... paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."

Regulation 5 provides so far as material as follows:

"(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.

(2) A request for a screening opinion shall be accompanied by ... [various matters are set out]

(3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.

(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.

(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request.

(6) Where an authority -

(a) fail to adopt a screening opinion within the relevant period mentioned in paragraph (4), or

(b) adopt an opinion to the effect that the development is EIA development;

the person who requested the opinion may request the Secretary of State to make a screening direction."

8. In this case, as appears from Ouseley J's introductory summary which I have quoted, the Secretary of State called in the application for his own determination. That being so, it is necessary to consider the terms of regulation 8(1), which provides:

"Where it appears to the Secretary of State that an application for planning permission which has been referred to him for determination -

(a) is a Schedule 1 application or Schedule 2 application; and

(b) the development in question has not been the subject of a screening opinion or screening direction; and

(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,

paragraphs (3) and (4) of regulation 6 shall apply as if the referral of the application were a request made by the applicant pursuant to regulation 5(6)."

Regulation 6 paragraphs (3) and (4) provide as follows:

"(3) The Secretary of State shall, if he considers that he has not been provided with sufficient information to make a screening direction, notify in writing the person making the request pursuant to regulation 5(6) of the points on which he requires additional information and may request the relevant planning authority to provide such information as they can on any of those points.

(4) The Secretary of State shall make a screening direction within three weeks beginning with the date of receipt of a request pursuant to regulation 5(6) or such longer period as he may reasonably require."

9. In summary then when the Secretary of State, on a call-in application such as this, is faced with a state of affairs to which paragraph 1(a), (b) and (c) of regulation 8 apply, he has to adopt the regulation 6 paragraph (3) and (4) procedure and in effect make a screening direction within the stipulated time.
10. I may now go to regulation 4, which is crossheaded "General provisions relating to screening":

"(1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.

(2) The events referred to in paragraph (1) are ...

(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.

(3) A direction of the Secretary of State shall determine for the purposes of these regulations whether development is or is not EIA development ...

(6) Where -

(a) a local planning authority adopt a screening opinion; or

(b) the Secretary of State makes a screening direction under these Regulations;

to the effect that development is EIA development -

(i) that opinion or direction shall be accompanied by a witness statement giving clearly and precisely the full reasons for that conclusion; and

(ii) the authority or the Secretary of State, as the case may, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (i) to the person who proposes to carry out, or who has carried out, the development in question."

Regulation 4 shows how the making of a screening direction by the Secretary of State under regulation 6(4) is carried through into the process for granting or refusing planning permission for EIA development.

11. Regulation 20 paragraph (1) requires, among other things, that a screening opinion shall be placed on the planning register of a local planning authority. I should say, for it is important for one of the appellant's grounds of appeal, that regulation 20 paragraph (1), and perhaps so far as it goes regulation 5(5), implement Article 4(4) of the directive which requires that the process of determining whether a project shall be subject to an EIA assessment should be made public.
12. It is also convenient to refer, as the judge did, to the Government's policy guidance document dealing with the application of the law relating to EIAs. This is Circular 2 of 99. It contains certain indicative criteria relating to environmental impact assessments intended for consideration on a case by case basis. They are set out in Annex A. They are no more than broad indications. I need cite only paragraphs A18 and 19. First there is a heading, "Urban development projects (including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiple cinemas)" then A18:

"In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are on a markedly different nature or there is a high level of contamination."

Then there is a crossreference to paragraph 41 which I need not read. A19:

"Development proposed for sites which have not previously been intensively developed are more likely to require EIA if: the site area for the scheme is more than 5 hectares; or it would provide a total of more than 10,000m² of new commercial floor-space; or

the development would have significant urbanising effects in a previously non-urbanised area [and an example is given of that last instance."

13. Now I may turn to the facts relating to the history of the application. First, it is beyond contest that the Secretary of State did not make a screening direction under regulations 8 and 6(4). His case is that he did not need to do so because before he determined the planning application there was already in existence a screening opinion of the local planning authority, the Calderdale Metropolitan Borough Council, to the effect that the proposed development was not EIA development. The appellant's riposte is that the documentation put forward by the Secretary of State as constituting a screening opinion does not in fact constitute such an opinion lawfully made within the meaning of the regulations, and accordingly the Secretary of State has granted planning permission without having undertaken the mandatory procedures for ascertaining whether the development applied for was EIA development. In those circumstances, the argument runs, the planning permission granted is unlawful and liable to be quashed on the appellant's statutory appeal to the High Court under section 288 of the Town and Country Planning Act.
14. The putative screening opinion relied on by the Secretary of State is contained, or more accurately its terms are quoted, in a letter dated 4th July 2000 from the Calderdale Metropolitan Borough Council to the Government Office for Yorkshire and The Humber. The letter bears the name of Mr Philip Raper, who was at the time Principal Planning Officer (Development Control) with the Council. Here are its relevant terms:

"Dear Mr Crawshaw

Further to your recent telephone conversation with Mr Melhuish concerning the above, I can confirm that a screening opinion in respect of the Town and Country Planning (Environmental Impact etc) Regulations 1999 was made following receipt of the application pursuant to paragraph 5 of those Regulations. The view was taken that an EIA was not required for the following reasons: -

'A site of 3.77 ha, again for retail (and leisure) purposes which therefore falls into the same category as the above ie S10(b) of Schedule 2.

This time the site is already built-up with massive silos occupying the centre of the site. Para A18 of the advice is therefore relevant - "EIA ... unlikely unless scale of development is significantly greater". In volume, that is unlikely to be the case although the main retail block would cover a larger ground area. (However, most of the site is already tarmac covered/occupied by buildings). Overall, the scale of redevelopment is considered similar; the traffic impact will be greater in attracting numbers of cars, but the closure of Mill Royd Street will reduce the cross-site movements, so in traffic terms it is a case of swings and roundabouts. There is unlikely to be a high level of contamination.

Site not considered to fall into Para 33/a/b/c therefore EIA not required".'

15. There is quite a lot to say about this letter. The screening opinion relied on is said to be the passage in quotation marks. In relation to its content I should state in passing, first, that we do not know what is the intended reference made by the words "the above" in the first sentence, but nothing I think turns on that. Secondly, the reference to "Para A18 of the advice" is, as may be obvious, a reference to paragraph A18 of the Annex to Circular 2 of 99 which I have already read.
16. Calderdale's evidence was that the quoted passage had been copied out (for the purpose of drafting and sending the letter) from an original manuscript document prepared by Mr Raper. A senior planning officer, by name Mr Melhuish, had actually drafted the letter, although as I have said it bears Mr Raper's name; and so it was he who had copied Mr Raper's manuscript into the text of the letter. The original manuscript is lost. The Council's copy of the letter was on the planning file, though not on the planning register. In fact, Mr Melhuish says that there are no copies of screening opinions on the register for the period between 14th March 1999 and 2000. Mr Raper's evidence is that the manuscript document was indeed made by him and was a screening opinion prepared by him.
17. At first instance there was a suggestion by the appellant that the letter of 4th July 2000 and an associated file note had been manufactured after the event, and that Mr Raper had never even purportedly given a screening opinion. There was a question about when the letter had got onto the planning file. This suggestion was scotched before Ouseley J. The original of the letter sent to the Government Office for Yorkshire and The Humber was produced. It was stamped received 6th July 2000. The judge accepted that Mr Raper prepared a manuscript note in the precise terms set out in the letter of 4th July, that he did so in the first three weeks of August 1999 and that it was intended by him to constitute a screening opinion. There is, as I understand it, no challenge to those findings in this court.
18. Aside from the appellant's suggestion of invented evidence, the first point in the appellant's case below and now urged in this court is that Mr Raper's note was not within the statutory definition - "written statement of the opinion of the relevant planning authority". The judge accepted that Mr Raper's original manuscript had not been signed by him, nor did it state that it had been made in the name of the Director of Environmental Services. Mr Raper's evidence was that Environmental Services within the Council included planning functions. He stated that within Environmental Services he, Mr Raper, was in 1999 the principal planning officer with responsibility for development control. The main question on this part of the case is whether Mr Raper enjoyed lawfully delegated authority to make the screening opinion.
19. Annexed to Mr Raper's first witness statement is a document which he describes as "the Council's Scheme of Delegation". That apparently recorded or constituted the delegation by the Council of certain matters to specified officers. Among the matters delegated to the Director of Environmental Services was:

"6.15. The authority to determine the necessity for environmental assessment in respect of planning applications or requests for opinions on the necessity for such requirements".

Mr Raper stated in paragraph 2 of his first statement that this was one of the delegated functions exercised by senior planning officers such as himself in the director's name and with his authority, and on this particular occasion, as it happens in the absence on leave of Mr Melhuish (the planning officer otherwise dealing with the matter), he, Mr Raper, exercised the function in question by giving the screening opinion.

20. The judge accepted this evidence. He held that Mr Raper possessed and exercised actual authority to give the screening opinion, which was accordingly a proper screening opinion as envisaged in the regulations.
21. The appellants challenge this conclusion, principally submitting that the judge's finding cannot stand because fresh evidence demonstrates that Mr Raper's account of the Council's delegation scheme was entirely wrong. This was put to Maurice Kay LJ and Sir Martin Nourse on the restored application for permission to appeal on 18th February 2004 and was reflected in their grant of permission. The fresh evidence adduced by the appellant is contained in the third witness statement of Mr Ibberson.
22. It is common ground that Mr Raper's description of the position relating to delegation was indeed erroneous: he referred to the wrong scheme. This was, I have to say, the first chapter in the long book of the Council's lamentable incompetence in dealing with this litigation.
23. Mr Ibberson exhibited a document headed "Scheme of delegation of powers, duties and responsibilities". It has written on it in manuscript "in operation from 28 April 99". The context of this document is given in the Council's fresh evidence put in in response to Mr Ibberson's third statement; that is to say, the statement of Mr Peter Burton, whose title is apparently Democratic Services Manager for the Borough Council of Calderdale and the statement also of Mr Norrie, the Chief Law and Administration Officer within the Council. Mr Norrie's statement was before this court on 18th February 2004. Mr Burton's statement is only about a week old.
24. Mr Burton says that the Council was moved to change from a committee style of administration to a cabinet style system. Five new group directorates were created with new group directors at their heads. The changes were approved by the Council, he said, on 28th April 1999. The Planning Service was to become part of the new Regeneration and Development Directorate but the new posts were not all created at once. Thus the new Group Director of the Regeneration and Development Directorate was only appointed on 17th November 1999 with effect from 6th March 2000. Mr Burton says at paragraph 4 that the existing departmental director posts were to be, as he puts it, deleted with effect from the appointment of the new heads of service; and indeed the Director of Environmental Services, to whom Mr Raper referred, remained responsible for the Council's planning functions until the new Chief Planning Officer took up his post on 8th August 2000.
25. Although the changes to the Council's administrative structure were not planned to take place overnight but, as I have shown, were introduced over time as and when they were ready to be made, the Council and the Secretary of State readily accept that at the time when Mr Raper wrote his note the scheme of delegation which was in place was not that produced and referred to by Mr Raper, but the new scheme approved on 28th April 1999, or at any rate a version of it. This scheme was amended from time to time to reflect changes as they came along. The Council say that the version of the new scheme exhibited to Mr Ibberson's third statement is one which was in operation only after May 2000 rather than the original version. The original version, said by the Council to be in force in August 1999, contained this statement concerning delegation:

"Powers delegated to officers

In introducing the proposed delegations to officers the Chief Executive explained that these represented a significant change from the current approach. The proposals provided in essence a general authority to action Council policy as distinct from the current list of specific powers."

That is a summary of what was being said by the Chief Executive at the relevant meeting, then the actual executive provisions relating to delegation are in numbered paragraph as follows:

"1. The Chief Executive is the head of the Paid Service and has authority over all other Chief Officers so far as is necessary for efficient management and for carrying out the Council's functions.

2. The Chief Executive and Directors referred to as 'the Council's Chief Officers' in this part of the Standing Orders are empowered to act and take decisions in the name of the Council. Other officers may from time to time be authorised to act on behalf of the Council by the Cabinet Committees and are referred to as 'authorised officers' in this part of the Scheme of Delegation.

3. The Council's Chief Officers may authorise officers in their Department to exercise on their behalf powers delegated under this Standing Order. However, actions and decisions taken under that authority must be taken in the name of the Chief Officer concerned and remain his or her responsibility."

I may break off there.

26. The Director of Environmental Services was in August 1999 a chief officer within the meaning of this description: see Mr Norrie paragraph 2. The Council's planning functions were at that time dealt with within the Director of Environmental Services Department: see again the same reference. Mr Norrie at paragraph 4 confirms Mr Raper's own evidence that at the material time he, Mr Raper, was authorised to take actions and decisions relating to planning matters on behalf of the Director of Environmental Services.
27. Mr Raper's reliance on the wrong scheme of delegation is not the only mistake made by the Council in relation to this issue of delegation. On 19th December 2003 Mr Burton sent what he himself says was an inaccurate reply to a Mr Pruden who had inquired on behalf of the appellants about the Council's scheme of delegations and in particular who had the power to make planning decisions between June and October 1999. Mr Burton explains his error at paragraph 14 of his statement. I need not lengthen this judgment by going into it.
28. This court received a fresh skeleton argument prepared by counsel on behalf of the appellants yesterday. This attacks the fresh evidence of the Council, both that of Mr Norrie and of Mr Burton, as being inaccurate in a number of respects and also incomplete.
29. It was first contended by Mr Harwood this morning and in the skeleton that Mr Burton's evidence should not be admitted because it does not pass muster pursuant to this court's conventional approach to fresh evidence set out in Ladd v Marshall [1954] 1 WLR 1489. One of the assertions made in the skeleton was that the scheme of delegation produced by Mr Ibberson was in fact the right one after all for the purposes of August 1999, not the other version exhibited by Mr Burton. Given that Mr Burton's evidence, although produced very late, had been assembled as a response to Mr Ibberson's own fresh evidence, an argument based on Ladd v Marshall was, to my mind, a bit rich to say the least. However I would certainly accept, and I have already indicated as much, that the Council have made a pig's ear of preparing their material for this appeal and have generated all the difficulties that have arisen by putting in inaccurate evidence through Mr Raper in the first place. They certainly do not deserve to be treated with any tenderness. However, be that as it may, early in the hearing Mr Harwood accepted that Mr Burton's evidence might be received by the court.
30. If one discounts, as I would certainly discount, any sinister possibility of conspiracy or perjury on the part of the Council, there are as it seems to me, despite all the obfuscations and inaccuracies, certain key facts which bear crucially on the issue whether Mr Raper's screening opinion was indeed within the Regulations.
31. First, it is not open to any reasonable doubt, as I see it, that one or other versions of the new scheme of delegations was operative in August 1999, and at length Mr Harwood accepted as much. It is also important that the version produced by Mr Ibberson and that which Mr Burton says was operative at the relevant time are in fact in identical terms in relation to those numbered paragraphs which set out the position as to delegation. Next, and no less important, Mr Raper and Mr Norrie both say that Mr Raper was in fact acting under the authority of the Director of Environmental Services.
32. Now, in the light of all this long preamble, I may at last turn to, and for my part resolve, the actual issues in the appeal.
33. Here is the first issue. Did Mr Raper have authority to make a screening opinion in August 1999? I have no doubt that he had. He says he had; so in effect does Mr Norrie. Any of the versions of the Council's delegation scheme is, in my judgment, on its face sufficient to confer, or more accurately allow the conferment, of such authority on him. In reality it is unthinkable that the arrangements within the Council would be such that no-one except the director himself could lawfully make such an opinion. In my judgment, it is the plainest inference that Mr Raper was authorised to act as he did by the director. Mr Harwood does not accept this. He submitted this morning that it is not shown that there was any actual delegation to Mr Raper. However, for my part I do not think that the new scheme prohibited a general delegation to such officers as Mr Raper, and at length I understood Mr Harwood to accept this. Mr Harwood referred to the letter written by Mr Burton to Mr Pruden said by Mr Burton to be inaccurate. That letter concludes with these sentences:

"I have consulted the Chief Planning Officer in relation to those officers within the Planning Service who were authorised to approve planning applications at that time. He advises that decisions on planning applications at that time were made in the Chief Officer's name by a panel consisting of at least two of the principal planning officers in the Planning Service."

Mr Burton says that this was incorrect. I am prepared to accept that that was so. The evidence of Mr Raper, Mr Norrie and Mr Burton is that Mr Raper was authorised. It is possible (it is unnecessary to speculate) that this reference in the letter to the approval of planning applications is a reference only to the mechanics of the actual grant or refusal of planning permission. However that may be, after much pressure from the court Mr Harwood at length accepted that in August 1999 the Director of Environmental Services was empowered to authorise Mr Raper to make his screening opinion. He accepted also that if Mr Raper enjoyed a general authority, he had no need to seek a specific authority.

34. As I understood him at the end, Mr Harwood's real submission was that because of the gaps and inconsistencies in the Council's evidence the court should simply find itself unprepared to conclude that any lawful delegation to Mr Raper is demonstrated. I do not accept that. I have already stated I consider it to be the plainest inference that Mr Raper was authorised. I consider that inference to be right despite the obfuscations and difficulties caused by the incompetence of the Council.
35. I may turn to the second issue. It is part of the first ground as drafted in the grounds of appeal but has been dealt with as a separate issue in the argument. Here it is. Given that Mr Raper possessed such authority in August 1999, did he act in accordance with it in making the note said to constitute the screening opinion? The point here being taken is that both versions of the replacement scheme of delegation state in paragraph 3, and I have read it:

"Actions and decisions taken under that authority must be taken in the name of the Chief Officer concerned and remain his or her responsibility."

Mr Raper's manuscript note, so far as the evidence shows, was unsigned, undated and bore no statement to the effect that it was made in the name of the Director of Environmental Services or anyone else. In those circumstances, Mr Harwood submits that the note was not in fact made in the name of the Chief Officer. This was not an assault on Mr Raper's honesty. The submission, in truth, is that the note cannot in law be treated as having been made in the name of the Chief Officer.

36. It could hardly be more obvious that it would have been very much better if Mr Raper had invested the making of this note with some semblance of formality, such as by stating that it was made for and on behalf of the Chief Officer or the Director. But on the proper construction of the post-April 1999 delegation scheme, I do not consider that the failure to do so invalidates the officer's authority in relation to the document in question. I respectfully agree with the comment made by Buxton LJ refusing permission to appeal on the papers. He said:

"The argument in paragraph 18 of the skeleton [that concerns this point] confuses form with substance. Provided it was the case, as the Judge found as a fact, that Mr Raper did act in the name of the Director, his failure to recite that on the document does not invalidate the latter."

That comment seems to me to be as apt to the facts as we know them in light of the new evidence as it was apt in the light of the facts presumed by Ouseley J.

37. I turn to the third issue. Here it is contended that Mr Raper's note was in any event not a screening opinion at all. Given my conclusion on the second issue, I would hold that Mr Raper's note fell within the statutory definition of "screening opinion" in regulation 2(1) of the Regulations. I repeat it for convenience:

"a written statement of the opinion of the relevant planning authority as to whether the development is EIA development."

38. However, Mr Harwood submits, and it is certainly the case, that no copy of this opinion was sent to the applicant for permission as required by regulation 5(5) or placed on the planning register as required by regulation 20 (1). However these facts, though they disclose breaches of the Council's obligations, are not capable in my judgment of taking the document out of the statutory definition.
39. Reliance is placed on Lebus v South Cambridgeshire District Council [2002] EWCA Admin 2009, [2003] JPL 466, but that was a case where there was no document at all that could sensibly be described as a screening opinion. I do not consider it advances matters any more than Ouseley J did. I shall have more to say about the breaches of regulation 5(5) and 20 (1) in respect of a later ground. They do not, in my judgment, assist the appellant on this part of the case.
40. I turn to the fourth issue, that is whether the planning permission should have been quashed because the Council, through Mr Raper, wrongly considered that no environmental statement would be required, in the event of the development being held to be EIA development, because the necessary traffic information would be given in a traffic impact assessment. This point arises from, and can only be understood by reference to, paragraph 5 of Mr Raper's second witness statement. There he said:

"I was aware from knowledge of pre-application discussions with the applicant that a Traffic Impact Assessment was to be submitted along with the application. This TIA was expected to cover all traffic matters, including off-site impacts (and did indeed do so). With this expectation, I did not consider that traffic matters in themselves would have necessitated submission of an EIA since this would have involved unnecessary duplication. Nevertheless in assessing the need for an EIA I did give consideration to the questions of both the diversion of the existing traffic and distribution of traffic likely to be generated by the development (particularly cars) on to both the existing nearby road network and the new road to be built west of the site (to accommodate existing North-South traffic movements). My conclusion, based on my knowledge of the proposal and its location, was that on balance its impact would not be so significant as to justify the need for an EIA."

41. It is accepted that Mr Raper's view that the forthcoming traffic impact assessment would render submission of an EIA unnecessary was wrong as a matter of law. It is submitted that Mr Raper's veracity cannot survive his erroneous evidence about delegation, but I have already rejected that. It is also submitted that Mr Raper's view about traffic matters is tainted by his erroneous opinion that a traffic impact assessment would make an environmental impact assessment unnecessary. I cannot see why that should be so. It is also said that once an error of law such as that indicated here is shown, the court is bound to nullify the decision in question unless the error were de minimis. The judge accepted (see paragraph 33) that Mr Raper had in fact properly considered all the off-site traffic effects. So do I. The judge accepted also that this perfectly good reason for not requiring an EIA was not tainted by the bad reasoning constituted by his erroneous view of the law (see paragraphs 30 and 39). So do I.
42. I turn to the fifth issue. Did the judge fall into error when he distinguished the decision of their Lordships' House in Berkeley [2001] 2 AC 603 by holding that the breach of regulations 5(5) and 20(1) did not mean that the planning permission was "not within the powers of the Act" as opposed merely to amounting to a breach of procedural requirements?
43. In order to understand how this point arises it is necessary to refer to the legislative provision which gives the High Court jurisdiction to hear these proceedings. That is to be found, as I foreshadowed, in section 288 of the Town and Country Planning Act 1990. Section 288(1)(b) provides, in part:

"If any person ...

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds —

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section."

44. The grant of planning permission by the Secretary of State is an action to which the section applies. Section 288(5) then provides in part:

"On any application under this section the High Court ...

(b) if satisfied that the action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that action."

45. In Berkeley the Secretary of State had granted planning permission for the redevelopment of the Fulham Football Club ground, but he failed altogether to consider whether an EIA was required. Before their Lordships' House it was common ground that the grant of planning permission was unlawful: that it was not within the powers of the Town and Country Planning Act. So the case was undoubtedly one brought under section 288(1)(b)(i), not 288(1)(b)(ii). It was sought to be argued before their Lordships that there had on the facts been substantial compliance with the requirements of the directive so that, had proper consideration been given to the question of an EIA, the result would have been the same and planning permission granted. It is convenient just to cite part of the headnote, page 604 letter C and following:

"... since the Directive required not only that decisions as to such projects were made on the basis of full information but that the information be obtained by means of a particular procedure, namely an environmental impact assessment, as provided for by the Regulations and including the requirement for a statement as described in Schedule 3, it was not open to the court to dispense retrospectively with that requirement on the ground that the outcome would have been the same; that, save possibly where the flawed procedure had in fact amounted to a substantial compliance with the Directive, the court ought not to exercise its discretion under section 288(5)(b) of the 1990 Act to uphold a planning permission granted contrary to the provisions of the Directive, since to do so would be inconsistent with the court's obligations under European law to enforce Community rights; and that, accordingly, since in any event the making available at the public inquiry of a disparate collection of documents produced by parties other than the developer had not amounted to substantial compliance with the terms of the Directive, the Secretary of State's ultra vires decision to proceed without consideration of the need for an environmental assessment under the Regulations could not be upheld and the grant of planning permission would be quashed."

46. This morning Mr Harwood drew our attention to passages in Lord Hoffmann's speech, emphasising (page 615) the importance in terms of European law of the public transparency of the EIA process and (page 616) the very limited scope for any discretion not to quash a planning permission which had been granted contrary to the provisions of the Directive. In the present case I can do no better than set out Ouseley J's reasoning on this point, with which I am in entire agreement:

"67. However, Mr Harwood also submitted that the screening opinion was flawed because of more significant procedural failings. It is a requirement of regulation 5(5) that the screening opinion be sent to the applicant for planning permission. It is accepted that that was not done. I should point out that the applicant for planning permission has not complained about that; it is a rival commercial developer, seeking to stop the development applied for who is trying to take advantage of that omission. It is also a requirement of regulation 20 that the screening opinion be placed on the planning register. Again it is common ground that it was not placed on the planning register. It is a requirement of the Directive that the screening opinion be made available to the public. That requirement has been transposed into domestic law by the requirement to place the screening opinion on the register. Accordingly, although the screening opinion was in fact available to the public, because the screening opinion was on the publicly available files of the local planning authority at various times and the letter of 4th July 2000 was always on the file, the requirement of the regulation transposing the Directive was not met.

68. Mr Harwood appeared to submit that these failings by themselves meant that the Secretary of State's decision should be quashed and that only a very limited discretion was available to the court as a result of the decision of the House of Lords in Berkeley. I do not accept any such submission. Assuming for the moment that a flaw in the procedures of the sort here are capable of giving rise to a section 288 challenge, I do not see that they fall within 288(1)(b)(i) - action not within the powers of the Secretary of State - rather than within (ii) - a failure to comply with relevant requirements.

69. If they fall within the latter, it is necessary for the Claimant to show that its interests have been substantially prejudiced by that failure before the discretionary power to quash arises under section 288, however limited that may be, section 288(5(b). There is no evidence that the Claimant's interests have been prejudiced at all, nor is it possible to see how they could be. It acquired its interests in the site in March 2002, knowing of the call-in, the Inquiry and of the minded-to-grant letter. It did not pursue any interest in the decision made in 1999 about whether an environmental statement was necessary until after planning permission had been granted in November 2002, following conclusion of the section 106 agreement. It has not been remotely affected by the procedural failures; rather it has been provided with an uncovenanted opportunity to attack the planning permission.

70. In so far as it was ever suggested that that failure could fall within section 288(1)(b)(i) because of the European Directive background in the Berkeley decision, it is misconceived. The failure on the part of the Secretary of State in Berkeley to consider whether the development required environmental assessment led to the decision to grant planning permission being void under section 288(1)(b)(i), because it was implicit in the then regulation 3 that he had to consider that point in order to comply with the statutory duty in regulation 3, the then equivalent of regulation 4 of the 1999 Regulations. By regulation 25 (the equivalent of regulation 30 in the 1999 Regulations) a breach of regulation 3 meant that the subsequent decision was not within the powers of the Secretary of State. The limited discretion which in those circumstances was available under domestic law was further constrained by the need to ensure compliance with EC obligations contained within the Directive and Treaty. There had been no substantial compliance with the obligation to consider the issue; it was a misconception to treat the process of environmental assessment as simply being the furnishing of information to the decision-maker. It would therefore have been wrong to allow the exercise of the residual discretion to uphold the decision on the basis that it would have made no difference to the decision if there had been an environmental statement.

71. However, those considerations do not apply to the breach of Regulations here, even though they are part of the transposition of EC obligations into domestic law. They are procedural provisions which cannot, on any view of the Regulations or Directive, go to the question of whether there had been a breach of regulation 5 or 8 or of Article 4(4) of the Directive. The now explicit obligation to consider whether development was EIA development was in fact fulfilled. The effect of regulation 30 is to make a breach of regulation 3 or 25 one which causes the decision to fall outside the powers of the Secretary of State. Those provisions were not breached."

47. Shortly after Ouseley J's decision in the present case this court gave judgment in Richardson [2004] 2 All ER 31. In that case there had been a breach of regulation 21 of the 1999 Regulations which obliged the local planning authority to make available for public inspection a statement containing the main reasons on which the council's planning decision had been based. It will be seen therefore that the breach or violation in question was of a requirement which fell to be complied with at a point after the grant of the material planning permission. Simon Brown LJ (as he then was) said this, page 48:

"41. Mr McCracken submits that the breach of regulation 21(1) cannot possibly be characterised merely as "a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive", such as alone Lord Hoffmann appears to have contemplated could properly escape the extreme sanction of the permission being quashed. The flagrant breach of regulation 21(1) here, he points out, was something quite different from the scenario postulated in paragraph 51 of Richards J's judgment (as set out at paragraph 34 above). A venial error of that nature, he accepts, could well be excused as falling within Lord Hoffmann's exception to the basic principle (akin, suggests Mr McCracken, to the operation of the slip rule). Not so a failure to recognise until long after the decision was taken that reasons needed to be given for it.

42. This whole argument to my mind reads altogether too much into Berkeley. It is not necessary to go as far as Carnwath LJ recently went in Jones -v- Mansfield District Council [2003] EWCA Civ 1408 in suggesting the true reach of the Berkeley principle was narrow - a view which Mr McCracken suggests was both obiter and arrived at without argument - to conclude, as I do, that Richards J's reasoning and decision in the instant case sit perfectly comfortably alongside that authority.

43. In short, I fully concur with the judgment below in respect of the entirety of the EIA-based part of this challenge and rather regret that, instead of simply saying so in the baldest terms, I have somewhat slavishly followed the convention of addressing at least the bulk of the arguments afresh."

I will not with great respect cite Richards J's judgment in that case. It is in the bundle before us and of course can be read by anyone interested in the matter.

48. I accept of course and have already stated that Richardson deals with a breach occurring after the grant of planning permission. But with respect I would simply apply parallel reasoning to the facts of this case.
49. The sixth and last issue is whether the trial was unfair because of the ignorance both of the court and of the appellants of the fact that the Council's evidence on delegation was wrong; that deprived the appellant, so it is said, of a stronger basis on which to apply to cross-examine the Council's witnesses, and also deprived them of the possibility that the judge might have taken a different view of those witnesses' credibility. In my judgment, this adds nothing whatever. If we in this court considered that the case could only be properly and fairly resolved by having the Council's witnesses cross-examined, it would of course be open to us to order a new trial in which that could be done. For my part however, and for reasons which I have given, this case falls to be resolved against the appellant; and that is in the light of the new evidence and the court's knowledge of the inaccuracies before Ouseley J. I do not consider that any cross-examination is required, or would have been at first instance, had all the present evidence been in at that time. Either Mr Harwood succeeds on his substantive ground, in which case plainly he has suffered no unfairness, or he does not, in which case there is no separate room for this last argument.
50. Accordingly, for all the reasons that I have given, for my part I would dismiss this appeal.
51. LORD JUSTICE WALL: I agree and have nothing to add.
52. THE PRESIDENT: I also agree. The appeal is dismissed.

Order: Appeal dismissed. The appellant to pay the first respondent's costs to be subject to a detailed assessment. Costs order below undisturbed.