COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMIN ISTRATIVE COURT
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD JUSTICE WILSON
| The Queen (Catt)
|- and -
|Brighton and Hove City Council
|Brighton and Hove Albion Football Club
MR JONATHAN CLAY (instructed by D M H Stallard Esq) for the Interested Party
Hearing date : 20 February 2007
Crown Copyright ©
Lord Justice Pill:
" 'EIA development' means development which is either – (a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;"
Paragraph 13 of Schedule 2 to the Regulations includes among Schedule 2 developments any proposed change to or extension of authorised development where the change or extension may have significant adverse effects on the environment.
"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
The criteria in Schedule 3 are set out under the headings "Characteristics of development", "Location of development", and "Characteristics of the potential impact". Having regard to the points taken on this appeal, it is not necessary to set them out fully. Under the heading "Characteristics of the potential impact", the decision maker must have regard in particular to matters which include the extent of the impact (geographical area and size of the affected population) and the duration, frequency and reversibility of the impact.
"Brighton and Hove Albion's use of Withdean Stadium undoubtedly has some impact upon the surrounding residential area. However, that impact is limited in frequency and the development is proposed to be for a limited period. The impact can be considered to take place over a fairly sizeable area including related traffic and pedestrian movements but diminishes rapidly with increased distance from the Stadium. There are no significant polluting or natural resource implications. No features of recognised natural or man-made importance would be significantly affected by the proposal. The Football Club have put in place stewarding measures and sustainable transport arrangements to reduce any impact upon the surrounding area.
From the above considerations it is concluded that, although the proposal is Schedule 2 development, significant effects on the environment will not occur. The recommendation is that the Local Planning Authority adopts a formal screening opinion that EIA is not required for the proposed development contained within [the] planning application …"
"The Council recognises that the applicant [the Club] plays a large role in the local community and economy. An important consideration is the need to find a temporary solution to the difficulties faced by the applicant in finding a permanent venue for home football matches. Against this, another major consideration is the significant disturbance which matchdays can cause to surrounding residents. The Council believes on balance that permission should be given to allow home football matches to be played at Withdean until 30 June 2008, to protect the interests of the applicant until permission can be obtained for a permanent venue. The Council believes that impacts on residential amenity on matchdays (approximately 25-30 occasions per year) can be minimised through conditions. The impact of football matches on the use of the stadium by athletics clubs is also considered acceptable in view of conditions imposed.
Matchdays clearly cause significant disturbance to the surrounding residents and this impact is the main issue for consideration. Many objections have been received on a variety of grounds relating to the impact of the club's activities upon the surrounding residential area. A substantial number of letters of support have been received stressing the importance of the club to the city.
A range of transport measures have been in place for several years and have proved relatively successful. Further investigation of a residents parking scheme can be made to address parking within the cordon and additional measures can be sought to address the proposed additional seats. Environmental Health are satisfied that noise issues can be addressed through appropriate conditions. The frequency and duration of matches is very limited. Athletics facilities will be retained and enhanced. The proposed structures generally have a temporary [sic]
The Local Planning Authority will consult with the Safety Advisory Group in assessing any submissions in accordance with condition 8 [public address system] of this planning permission.
A Section 106 agreement relates to this site."
"Whilst a more intense environmental impact may be expected from the proposal compared to established use of the Stadium for athletics, the character of the use and its impact is similar. As stated above, it is primarily human activity on match days that could generate environmental impacts."
The development control manager correctly stated that "the present assessment is to be limited to the impact of the present development proposal", though that impact should plainly in my view be considered in the context of the existing development.
"All aspects of the development project must be considered; the relevant considerations may be different in a case where the central problem is the eventual effect of the development upon the environment and a case such as the present where the central problem arises from the current condition of the land."
"Prospective remedial measures may have been put before him (the Secretary of State) whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA."
"The uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."
"They involve the court retrospectively assessing when it was reasonable for an individual to apply for judicial review. The lack of certainty is a recipe for sterile procedural disputes and unjust results. By contrast if the better interpretation is that time only runs under Ord 53, Rule 4(1) from the grant of permission the procedural regime will be certain and everybody will know where they stand."
"It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i.e. from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution."
"It is not appropriate to wait until after planning permission has been granted, when it is too late to remedy the omission, and then complain that the screening opinion, which has been on the public register for some months, was erroneous. Each case will of course depend on its own particular facts but, as a general rule, where there is a discrete challenge to a screening opinion, it should … be made promptly so that any error, if there is one, can be remedied before the planning application is considered by the local planning authority."
The judge held that those observations were unaffected by Burkett because the screening opinion is a decision which has immediate legal effect.
"The real point was that the stage at which the claimant's rights were definitively at issue was the grant of planning permission, even though there were a number of steps in the decision- making process which had to be gone through for that permission to be issued. Some of those did have legal consequences akin to those attributed to the screening opinion here. But there was no certainty that the rights of those aggrieved would be affected until the grant of planning permission by the local authority in Burkett or by the First Secretary of State here."
Lord Justice Maurice Kay:
Lord Justice Wilson: