England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 April 2013

Mr Justice Lindblom:

Introduction

1. These two claims for judicial review raise related issues on the screening of development proposals under the regulations governing environmental impact assessment ("EIA"). Together they seek orders to quash three grants of planning permission by the defendant, Brighton & Hove City Council ("the City Council"), for development on the site of the Withdean Stadium at Tongdean Lane in Brighton, once the temporary home of Brighton and Hove Albion Football Club. The first planning permission was granted on 8 August 2011, the second and third on 21 December 2012. The claimant lives in Shepherds Croft, a street next to the site on its western side. He objected to these proposals, as he had to previous schemes of development on the site. In both of these claims he alleges shortcomings in screening, which, he says, vitiate the permissions the City Council has granted. His counsel, Mr William Upton, said the "crux of this case" is that the City Council has consistently misled itself in considering whether the proposals were for EIA development.
2. The first claim has permission to proceed, which I granted on the papers on 24 February 2012. The second does not have permission. On 6 February 2013 Ms Geraldine Andrews Q.C., sitting as a deputy judge of the High Court, ordered that it be listed for a "rolled-up" hearing on the date already fixed for the hearing of the first claim.

Background

The site

3. The stadium site is owned by the City Council. It extends to about six hectares, and lies in a residential area in the northern part of Brighton, close to the A23 London Road. To the west and north it is abutted by housing. To the south is the Withdean Woods Local Nature Reserve.
4. Inside the stadium is a football pitch, surrounded by a running track, with floodlights on columns 30 metres high. Once there were four stands: a permanent one on the north side of the pitch, and three temporary ones to the east, south and west. Turnstiles were put up at both the north-eastern and north-western ends of the site. At the western end of the site a sports hall and temporary buildings that provided facilities for football supporters were erected. The north-western part of the site was used as a car park. In the middle of the site there is a public house. And in the north-eastern part of it there is a "Park and Ride" car park.
5. The site has a long planning history. It was first developed as an arena for athletics in 1955. Since the late 1990's several applications for planning permission have been granted, including proposals to increase the capacity of the stadium. Two of those permissions, granted in 2002 and 2004, were quashed in proceedings brought by the claimant. Another, granted in July 2005, withstood his challenge both in the High Court and in the Court of Appeal (see [2006] EWHC 1337 (Admin) and [2007] EWCA Civ 298). Yet another, granted by the City Council in June 2008, survived attack in a further claim for judicial review, again made by the claimant (see [2009] EWHC 1639 (Admin) and [2009] EWCA Civ 1417).
6. Between 1998 and 2011 the stadium was used by Brighton and Hove Albion Football Club for its first team matches. For the start of the 2011/2012 season the club moved to a new ground at Falmer. However, its reserves and its women's team still play in the stadium. Other sports clubs – including some local football and athletics clubs and the Brighton and Hove Squash Club – are still using the site. By mid-2011 much of the temporary development on the site was being taken down and removed. Some of it, however, remained, including the west stand and the turnstiles. So did the car park at the north-western end of the site.

The July 2005 planning permission

7. On 20 July 2005 the City Council granted planning permission for development including the erection of "new stands and the extension of existing stands to provide an additional 1,966 seats". This would have increased the capacity of the stadium to 9,002. In fact, the number of extra seats installed was not 1,966 but 1,816, bringing the total to 8,852. The continued use of the stadium and the retention of the temporary buildings on the site were permitted until 30 June 2008.

The June 2008 planning permission

8. In June 2008 the City Council granted planning permission for the use of the stadium to be continued until 30 June 2011, the temporary facilities already on the site to be retained, and three of the conditions attached to the planning permission granted in 2005 to be varied. Condition 1 on the 2008 permission required the removal from the site, by 30 June 2011, of "[the] temporary West Stand, South Stand, North East Stand and East Stand seating terraces, temporary two storey hospitality building and other Portacabins (excluding the athletics pavilion), turnstiles …", and the land to be reinstated to its former condition by 30 September 2011. Condition 2 required the use of the site for Brighton and Hove Albion Football Club's first team matches to cease on or before 30 June 2011. Condition 3 required that, by 30 June 2011 or – if sooner – the day on which the playing of matches in the stadium ceased, the car park at the north-west corner of the stadium was to be removed and the land restored to grass.

The March 2005 and December 2007 screening opinions

9. The July 2005 and June 2008 planning permissions were both granted after the City Council had adopted screening opinions, in March 2005 and December 2007. In each of those screening opinions the City Council concluded that the development proposed was not likely to give rise to significant environmental effects and therefore did not require EIA.

The noise abatement notice

10. In July 2008 the City Council issued a noise abatement notice to deal with "noise arising from amplified voices and amplified music from the aerobics studio".

The City Council's "Masterplan"

11. On 17 March 2011 the City Council's Cabinet approved "the development of capital investment proposals" for "the Withdean Stadium Complex". The Cabinet had received a report from the City Council's Strategic Director, Communities. This referred to "indicative proposals for investment" (paragraph 3.2), involving "the construction of a two storey extension which wraps around the front and side of the existing building" (paragraph 3.3). It was reported (in paragraph 4.1) that "[some] initial pre-application comments have been received from the Planning Section" and that "the Withdean proposal is described as a strong proposal which deals with the poor legibility and permeability of the existing racket sport and fitness buildings".
12. On 29 September 2011 the Strategic Director, Communities presented a report to the City Council's Culture, Tourism & Enterprise Overview and Scrutiny Committee. The purpose of this report, according to the minutes of the committee meeting, was "to get some early feedback on Members' views on the future of the [Withdean] stadium". The possibility of replacing the athletics track was discussed. Officers were said to be "very keen to seek [members'] views in order to proceed with the development of the Masterplan, which was part of the citywide Sports Facilities Plan". The minutes record that it "was agreed that Members should consider the questions posed in the report and feed back any comments to Officers".
13. The report for that meeting advised the members that the options for the "Withdean Sports Complex" needed to be considered "within the overall context of sports facilities across the city" (paragraph 3.3). The site was "large and could be considered as a potential site for future developments, depending on what conclusions are reached in the [City Council's] Sports Facilities Plan" (ibid). The site was "listed in the [City Council's] Core Strategy as one of the city's major sporting venues", one of six sports facilities operated under contract by Freedom Leisure for the City Council (paragraph 3.5). Various ideas for the future use and development of the stadium site were outlined. It was noted that the athletics track would require to be replaced "over the next few years at a cost of approximately £500,000", an investment that would "secure the stadium's future as a regional standard athletics venue" (paragraph 3.17). Officers were said to be "assessing the feasibility of a capital investment proposal to increase the health and fitness provision" on the site (paragraph 3.19). Work would continue on the Sports Facilities Plan "to help identify priorities and inform potential options for [the stadium site]" (paragraph 3.22). A number of questions were posed, to help in deciding what role the site should play in the future (paragraph 3.23).
14. On 19 April 2012 the City Council's Cabinet received a further report from the Strategic Director, Communities. This referred to "proposals for improving sports facilities at Withdean Sports Complex as per the recommendations identified in the [City Council's] citywide Sports Facilities Plan 2012-22" (paragraph 1.1). The Cabinet was invited to agree "to undertake Phase 1 which is the investment proposal to increase the health and fitness facilities at Withdean Sports Complex subject to planning consent" (paragraph 2.1), and to "authorise officers to investigate the feasibility of the options listed under Future Phases" (paragraph 2.4). The officer went on to tell the members (in paragraph 3.16):

"There are further options to explore for Withdean Sports Complex which will help meet the recommendations of The Sports Facilities Plan 2012-22 … . Each of the options provided below will require further work to assess the capital and revenue costs and to identify appropriate funding. This will involve looking at available options for grant funding through Sport England and sports National Governing Bodies or through appropriate partnership arrangements."

Phase 1 became the development proposal in an application for planning permission to extend the sports hall, which was eventually submitted in September 2012. The officers were asked to investigate the feasibility of the options for future development, in Phase 2.

15. The status of the Masterplan is explained by the City Council's Sports Facilities Manager, Mr Kingsbury, in his witness statement of 2 May 2012 (at paragraph 15):

"… [The] Withdean Sports Complex Masterplan being developed by the [City] Council's Cabinet is not a planning document and has no status in planning policy. Neither does it have status as any other form of policy document of the [City] Council. The [City] Council does intend to make better use of the [Withdean Sports Complex], subject to appropriate consents, and is considering this in a coherent fashion, and in the light of the recently prepared Sport Facilities Plan (which did not exist even in draft at the time of the planning permission or the October Screening Opinion). [City] Council reports on the subject are given the title Masterplan but there is no Masterplan document and the Report to the Scrutiny Committee of September 2011 was simply an early step on the road towards a coherent strategy for the development of improved sporting facilities at the [Withdean Sports Complex]."

16. In his second witness statement, dated 20 February 2013, one of the City Council's planning officers, Mr Anson, adds that "it would take more than 5 years before most of the potential projects could have undergone feasibility studies, priorities identified, funding raised, building consents secured, and facilities have been built", and that the City Council's Sports Facilities Plan, which refers to these facilities, "envisages a timetable of ten years until 2022" (paragraph 23).

The August 2011 planning permission

17. On 29 March 2011 the City Council applied for planning permission for development on the stadium site, comprising the "[permanent] retention of [the] West stand, [the] North West and North East turnstiles and a reduced size North West car park [and the temporary] retention of [players'] lounge and changing rooms for a period of 3 years." The City Council granted planning permission for that development on 8 August 2011. This is the first of the three permissions challenged in these proceedings.

The June 2011 screening opinion

18. On 15 June 2011 the City Council's Head of Development Control produced a report whose purpose was to provide a formal screening opinion for the development proposed in the March 2011 application, under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 regulations"). The report duly became the City Council's screening opinion for that development.
19. In paragraph 4.4 this screening opinion stated:

"… Whilst the application is for the permanent retention of specific facilities, it should be considered on the basis that the site would otherwise be returned to its former condition after June 2011 and therefore the consideration of the effect of these facilities is in comparison to the restored site."

20. In paragraph 4.10 the potential impacts of noise and light were considered. It was noted that the public address system was "not part of the planning application" but that it "would only be used for larger events", and that the stadium had "4 main floodlights with permanent consent which can be used for evening football games and athletics club training in the winter evenings but the frequency of use would not increase due to the additional seating capacity". The impact of the lighting was limited by topography – the site being "located in a natural bowl and generally well screened by vegetation and buildings on the north side" – and "by frequency of use". The conclusion was "that there would not be a significant wider environmental impact due to noise, light or other pollution …".
21. It was concluded, in paragraph 5.1, that the development "would result in some permanent environmental impact for the adjoining occupiers in terms of visual impact, increased activity and vehicle movements". However, "the impact may only be significant for those residents and dwellings which immediately adjoin the site or are within close proximity of the buildings and access and parking areas on site" and "there would be no wider impact on the Withdean area as a whole that might warrant an Environmental Impact Assessment". Paragraph 5.2 stated:

"A screening opinion was carried out both in 2005 and 2008 [sic] for the applications which extended Brighton and Hove Albion Football Club's tenure at the stadium including the retention and extension of all of the stands, temporary buildings, and North West car park and other infrastructure but it was determined at the time that an Environmental Impact Assessment would not be required. From the above considerations it is concluded that, although the proposal is a Schedule 2 development, significant effects on the wider environment will not occur. … ."

The October 2011 screening opinion

22. On 19 August 2011 the claimant's solicitors sent the City Council a pre-action protocol letter, alleging errors in the June 2011 screening opinion. In its response, dated 14 September 2011, the City Council conceded that it had taken "a flawed approach to the question whether the development would be likely to have significant effects on the environment" in the screening opinion of 15 June 2011. It accepted that that screening opinion "does not reflect" the decision of Collins J. in R. (Baker) v Bath and North-East Somerset District Council [2009] EWHC 595 (Admin), and it acknowledged that the planning permission granted on 8 August 2011 (though it gave the date as 29 July 2011) "may be quashed". It went on to say that it would in any event have to "reconsider" its screening opinion and that, "if a different opinion is reached, the development will be EIA development and subject to the relevant procedures". However, it said, "if a lawful screening opinion were to reach the same conclusion ([i.e.] that the development is not EIA development) there would be little if anything [to be] gained by a quashing order". In their response, in a letter to the City Council dated 20 September 2011, the claimant's solicitors disagreed. They said the planning permission would have to be quashed, regardless of whether or not the City Council were now to conclude that the project was EIA development.
23. On 5 October 2011 the City Council adopted a further screening opinion, prepared by the Head of Development Control. The purpose of this document was said to be to "reconsider", in accordance with the provisions of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2011 ("the 2011 regulations"), whether the development for which the City Council had granted planning permission in August 2011 was EIA development (paragraph 1.1). The recommendation (in paragraph 2.1) was for the City Council "[to] resolve that if the application for planning permission was still before the [City] Council it would adopt a formal screening opinion that the development is not EIA development, and accordingly EIA is not required for the proposal …".
24. Paragraph 3.2 stated that "no weight" had been given to the June 2011 screening opinion, or to the City Council's decision to grant planning permission.
25. Paragraph 3.6 said that this screening opinion had been prepared "under and in accordance with the 2011 [regulations]", and that the Government's guidance on EIA in Circular 02/99 "must be treated with some caution and not followed insofar as it is inconsistent with legal requirements within the 2011 [regulations]."
26. Paragraph 3.15 described the proposal being screened as "[the] development as altered/extended by this proposal". Paragraph 3.16 stated:

"It is intended to assess this development as a whole when the question is asked whether the paragraph 13 [of Schedule 2] criterion is met, and (assuming that it is) whether the development is EIA development. Although the application relates only to an extension to the stadium, it is considered appropriate to consider all these uses of the wider site because of the way the different sporting and refreshment uses of the site overlap and support one another."

27. In section 4 of the screening opinion, headed "Considerations", paragraph 4.3 stated:

"… There are potentially two judgments to be made. The first is whether the development may have significant adverse effects on the environment. If so it is Schedule 2 development. The second judgment is required if the answer to the first is yes: then it's necessary to ask whether the development is likely to have significant effects (positive or negative) by virtue of factors such as its nature[,] size or location and taking into account the selection criteria within Schedule 3."

28. Paragraphs 4.6 to 4.13, under the heading "Characteristics of development", gave a lengthy and detailed description of the buildings and open areas on the site, their use, and the development proposed.
29. Paragraph 4.6, having described the stadium site in detail, identified "[the] main environmental considerations" in the screening process as being "the impact of the 383 parking spaces and their users, the use of the stadium with a total capacity of 2300, the cumulative impact of the additional changing facilities with the existing indoor and outdoor sports facilities, the public house and the Park and Ride facility."
30. The screening opinion went on to consider the "various implications of the Withdean Sports Complex as extended". In paragraphs 4.7 to 4.13, under the heading "Characteristics of development", the analysis largely mirrors that contained in the screening opinion of June 2011.
31. Paragraph 4.12 considered the lighting in the stadium, and made the same comments about topography and infrequency of use as had appeared in paragraph 4.10 of the June 2011 screening opinion.
32. Paragraph 4.13 dealt with the public address system:

"The Public Address system is a potential source of noise but is only used for events such as school sports days or club athletics meets. Following the departure of B&H Albion, the use of speakers is limited to those in the North Stand. The contract between the City Council and the Leisure operators of the site imposes strict controls on its use, for example it stipulates that the use of PA system should be monitored and operated without causing noise nuisance. An operating procedure has been written and approved by the [City] Council and must be followed when hiring out the track and field. The PA system has a sound limiter embedded preventing the controls being set higher by the user. Recorded or live music are not permitted nor are commentaries. The system is set so that only microphones in the North Stand operate as standard."

33. Paragraph 4.17, under the heading "Characteristics of the potential impact", said that the site retained "the existing character of a community leisure facility with indoor and outdoor sporting facilities [and] with spectator facilities capable of holding events of local significance". The "main potential impacts" of the development were: "a) [noise], disturbance and air quality impacts which could arise from the overall resultant traffic movements directly related to the development due to the visitor capacity of the whole stadium complex and the overall number of car parking spaces"; "b) … impact on the visual appearance of the complex and the amenity of the surrounding area arising from the retained North West car park, the retained West Stand, the temporary changing rooms and the turnstiles together with the existing development on site … [and] impact on the visual amenity of adjoining residents due to use of the floodlights in the complex as a whole"; and "c) … potential impacts due to crowd noise or use of the Public Address system arising from the overall capacity of the athletics arena, namely [2,300 seats] … ".
34. Those three impacts were discussed in the following paragraphs. The conclusion, in paragraph 4.21, was that "[having] taken all relevant effects into account … the development as extended is not such as "may give rise to significant adverse effects on the environment" and therefore is not Schedule 2 development." Thus it was not necessary to consider whether, if a different judgment had been reached, the development would have been found to be EIA development (paragraph 4.22). Nevertheless, that exercise was undertaken "for the avoidance of any doubt about the ultimate conclusion" (ibid.). The advice in paragraphs 33 and 35 of Circular 02/99 reinforced "the conclusion reached that the development would not have significant environmental effects" (paragraphs 4.22 to 4.25).
35. The "Conclusion" of the screening opinion drew the main elements of the analysis together. The "development as extended" was not one that "may have significant adverse effects on the environment" and was therefore not Schedule 2 development (paragraph 5.2). But in any event it was not likely to have significant effects on the environment by virtue of its nature, size or location, bearing in mind the criteria in Schedule 3 to the 2011 regulations (paragraph 5.3). The screening opinion went on to say:

"5.4 In terms of the advice in Circular 2/99 (Paragraph 33), it is considered that there would be no wider impact than in the vicinity of the site which as a whole would warrant an Environmental Impact Assessment. The development site is not environmentally sensitive and has no statutory designation nor would the resultant development have any complex or hazardous implications for human health arising from emissions, for example.

5.5 The recommendation is that the Local Planning Authority resolves that were the application made in March 2011 and determined in July 2011 before the [City] Council now, they would adopt a formal screening opinion that EIA is not required for the proposed development.

5.6 The Reasons for that opinion are set out below and will be placed on Part 1 of the Register.

5.7 a) It is not considered that the development as extended may have significant adverse effects on the environment. Accordingly the development is not Schedule 2 development.

b) Furthermore, it is not considered that the development as extended is likely to have significant effects on the environment by virtue of its nature, size or location, bearing in mind the criteria in Schedule 3 of the 2011 Regulations. Accordingly (even if a different view had been reached on the question whether the development may have significant adverse effects on the environment and is therefore Schedule 2 development) it is not EIA development."

The first claim for judicial review

36. In a letter to the claimant's solicitors dated 5 October 2011, the City Council's solicitor referred to the screening opinion of that date, and invited the claimant's solicitors to agree that "there need be no quashing order and therefore no judicial review of the decision to grant planning permission, and a line can be drawn under this potential dispute". In their letter of 10 October 2011 the claimant's solicitors said they did not agree with the conclusion in the screening opinion, explained why, and said they were advising the claimant to seek a screening direction from the Secretary of State.
37. The first of the two claims for judicial review now before the court was issued on 14 October 2011 as a challenge to the planning permission granted by the City Council in July 2011. In the claimant's grounds three basic submissions were made: first, that the City Council's screening opinion of June 2011 had failed to consider the project as a whole; second, that the City Council had unlawfully split the project into discrete developments; and third, that the City Council had exceeded its discretion in determining what the likely significant environmental effects of the project might be.

The claimant's request for a screening direction in October 2011

38. On 28 October 2011 the claimant's solicitors sought a screening direction from the Secretary of State. On 16 November 2011 a Senior Planning Manager in the National Planning Casework Unit of the Department for Communities and Local Government replied to the claimant's solicitors, saying that the scheme of the EIA Directive and the regulations was that EIA must be carried out for developments likely to have significant effects on the environment "before development consent is given (Article 2 of the EIA Directive)". Because in this case planning permission had already been granted, the claimant would have to seek relief from the court if the City Council's decision to grant planning permission was in breach of the statutory requirements. The Secretary of State had no power to screen for EIA at this stage.

The 2012 planning permissions

39. On 4 September 2012 the City Council submitted two further applications for planning permission for development at the stadium site. One of these (BH2012/02765) was for the same development as had been permitted in August 2011, with some minor adjustments and additions, including the retention of six storage containers. The other application (BH2012/02766) was for a three-storey extension of the sports (or tennis) centre, to provide an "enlarged fitness suite, new reception space with café, internal glazed links to squash courts and enlarged male and female changing rooms" and the "conversion of two squash courts to one fitness studio, one spin room [and] crèche and [the] creation of new covered cycle parking". Planning permissions for these two proposals were granted by the City Council on 21 December 2012.
40. In their report to committee on the extension proposal (in paragraphs 8.9 to 8.11) the City Council's planning officers advised that the extended sports centre would not cause significant pollution by noise or light. The Environmental Health Officer had not advised that conditions were required to prevent unacceptable noise impacts. He was satisfied that any complaints could be dealt with under the Environmental Protection Act 1990. The design of the extension, and its glazing, would reduce the impact of light on neighbouring residents. The lighting arrangements proposed and the design of the extended fitness suite, together with the screening provided by trees on the edge of the site, "would prevent any possible light nuisance". As Mr Anson explains in his witness statement of 20 February 2013 (in paragraph 24), the City Council was not envisaging conditions being imposed on the floodlighting, which already had planning permission without any condition restricting its use.
41. The developments permitted in December 2012 had each been the subject of a screening opinion. The screening opinion for the proposed extension of the sports centre was issued on 28 August 2012, and that for the retention of existing development on 8 November 2012.

The August 2012 screening opinion

42. The screening opinion of 28 August 2012, for the proposed extension of the sports centre, said in paragraph 1.4 that this proposal was to be screened "whilst taking into account a separate planning application which is intended to be submitted simultaneously seeking the retention of existing facilities installed by Brighton and Hove Albion". A separate screening opinion would be issued for that proposal. In section 3, "Background", paragraph 3.4 said "the proposed extension of the sports centre" would be referred to as "the development", and "the site as altered by the development and the proposed retention of facilities" would be referred to as "the Sports Complex as extended" or "the extended Sports Complex".
43. In section 4, "Considerations", paragraph 4.1 referred to the screening opinions of June and October 2011, both of which had concluded that the retention of facilities on the site was not EIA development. The City Council now proposed "to address the matter entirely afresh". Paragraph 4.2 said the "first task is to consider whether the development is Schedule 2 development". It said the City Council "remains of the view expressed in October [2011] that Withdean Sports Complex as extended/altered by the retention of facilities falls within paragraph 13(b) but is not one which "may have significant adverse effects on the environment"". However, in the absence of any guidance from the Government on this provision in the 2011 regulations, the City Council had "considered first whether the development is likely to have significant effects on the environment". It was assumed that the development "may have significant adverse effects on the environment". Since the "overall site area" for the retention of facilities was 5.9 hectares, well above the 0.5 hectare threshold in paragraph 10(b), it was "thought appropriate and prudent to treat the development as Schedule 2 development." Paragraph 4.5 referred to the selection criteria in Schedule 3 to the 2011 regulations. Paragraph 4.6 referred to the Government's advice in paragraphs 33 and 34 of Circular 02/99. It said the City Council was conscious, in particular, of the advice in paragraph 33 of the circular.
44. Paragraphs 4.7 to 4.12, under the heading "Characteristics of development", described the development proposed. Paragraph 4.7 said that "[careful] account has been taken of the size of the Withdean Sports Complex as extended by the proposed development". Paragraphs 4.11 and 4.12 referred to the impacts of light and noise, including light pollution from the use of the floodlights and noise from public address systems:

"4.11 There is a potential for adverse environmental effects arising from noise or light pollution. The south and east facing elevations would be constructed with glazed curtain walling. At present these elevations with the exception of the ground floor elevation are a solid steel clad construction which does not emit any artificial light. Artificial light pollution from floodlighting the athletics arena has been a source of complaints from neighbouring residents. The south elevation of the extension would be fitted with brise soleil to minimise solar gain. The remaining windows will be treated with appropriate solar shading. The brise soleil would also mitigate the potential for artificial light pollution. It is not considered that there would be any wider environmental impacts arising from light pollution. The current floodlighting when in use would remain the predominant source of artificial light and no additional significant impact is considered likely.

4.12 There have been complaints from residents in the past about noise from PA systems used inside the sports centre by fitness instructors (as well as outside for the athletics track). There is also a potential for noise from other amplified sound such as music. The lower ground floor extension would provide additional changing rooms and a new sauna/steam room. This would not result in any noise impacts. The ground floor extended reception and café area would also be unlikely to cause any significant noise impacts by their nature. The first floor extension to the fitness suite is where there is a potential source of amplified noise or music. The fitness suite would increase from 260 sq m to an overall cumulative floorspace of 572 sq m. Any increase in volume of noise required to serve an extended floor area would not significantly increase the potential impacts. The existing controls over noise limited through standard conditions and environmental legislation would be applicable and would not be relaxed to accommodate a larger facility.

… ."

Paragraph 4.12 ended with the conclusion that in view of its characteristics, including all those listed in Schedule 3, "the use of the Stadium as extended is not likely to have significant effects on the environment by virtue of its nature and/or its size".

45. Paragraph 4.16, in a section headed "Location of development" said "[the] location of development is not such as to make it likely the extended Sports Complex will have significant effects on the environment."
46. Paragraphs 4.17 to 4.19, under the heading "Characteristics of the potential impact", addressed the potential impacts of the whole extended sports complex, including both buildings and open spaces within the site. Paragraph 4.18 referred to the "main potential impacts from the use of the extended Sports Centre", namely "a) [potential] noise and disturbance arising from amplified sound from within the sports centre together with continued use of the athletics arena and from the accumulated trip generation to the Withdean Sports Centre by visitors and spectators"; "b) [light] pollution from the indoor sports centre as extended and the existing floodlights at the athletics arena", which was a "potential impact … on adjoining residents and the Local Nature Reserve from any possible leakage of artificial light from inside the sports centre"; and "c) [air] quality impacts which could arise from the overall resultant traffic movements directly related to Withdean Stadium Complex due to the visitor capacity of the whole stadium complex and the overall number of car parking spaces." Other potential effects were said to be "[transport impacts] – [road safety], traffic generation, congestion and parking" and "[visual impact]". In the same passage the screening opinion said this:

"Noise and light pollution complaints in the past have been received from residents living very close to the site and have been investigated and addressed. Due to the character of the site identified above which is heavily screened on all sides by mature trees and woodland and separated from eastern neighbourhoods by the railway viaduct, the extent of any impacts are [sic] limited to residents living close to the site. Evidence for this comes from the sources of the complaints. Therefore the extent of noise and light pollution impacts would be limited to the immediate locality. The magnitude of the impacts would not be significant in terms of the wider geographical area of the neighbourhood and certainly not the Withdean neighbourhood. It is also not considered that the complexity of the impact is significant and can be controlled. Any light pollution or noise pollution caused by the proposed development could also be technically controlled at the design stage and can be reduced to mitigate their impact. The impacts are technically reversible as well or can be further mitigated following implementation by additional screening or sound insulation."

and then this:

"The nature of the facility and the Withdean Sports Complex as a whole is that there are peaks and troughs in its usage where levels of activity will vary and from late evenings to early morning, there would be no activity associated with neither the proposed development nor the Withdean Sports Complex site as a whole. During off peak daylight hours, the environmental impacts of the proposed development and the Withdean Sports Centre as a whole are not significant."

Paragraph 4.19 concluded in this way:

"The potential impacts from the extended Sports Complex have been considered individually and cumulatively, and conclude [sic] that they are not likely to have a significant effect on the environment."

47. The "Conclusion" of this screening opinion was set out in section 5:

"5.1 The proposed development could result in some impact for some local residents in terms of increased noise and activity, light pollution and vehicle movements without any controls in place. The Withdean Stadium Complex, if extended as proposed, would not change its character from its present nature which is as a local authority leisure facility providing leisure and fitness facilities for Brighton and Hove residents. There are numerous health and fitness facilities within the City so the catchment area would not be City wide. It is not considered that the impact would be of more than local significance and that in terms of the advice in Circular 2/99 (Paragraph 33), it is considered that there would be no wider impact than within the vicinity of the site such as to suggest it requires an Environmental Impact Assessment. The development site is not environmentally sensitive and has no statutory designation nor would the resultant development have any complex or hazardous implications for human health arising from emissions, for example.

5.2 As set out in paragraph 4.2 the development which is the subject of this screening opinion has been treated as Schedule 2 development.

5.3 Accordingly, the potential impacts of the development (Application B) itself, the subject of the Request, have been assessed and of the Withdean Sports Complex as extended by the development and the cumulative impact of the intended re-submission of the retention proposals (Application A) and concluded [sic] that it is not likely to have significant effects on the environment by virtue of factors such as its nature, size and location.

5.4 The recommendation is that the Local Planning Authority adopts a formal screening opinion that an EIA is not required for the proposed development."

The November 2012 screening opinion

48. The screening opinion for the proposed retention of existing development, dated 8 November 2012, noted in paragraph 1.2 that this was a very similar proposal to that made in 2011. Paragraph 3.9, like paragraph 3.4 of the August 2012 screening opinion, indicated that the same approach would be taken to the two proposals.
49. Paragraph 4.1 of this screening opinion said it would "assess the environmental effects of the development and the extended Sports Complex afresh and without any reliance on any screening opinions adopted under the 1999 Regulations or in relation to the 2011 permission". Paragraph 4.2 matched the corresponding paragraph in the screening opinion for the extension of the sports centre; it was "thought appropriate and prudent to treat the development as Schedule 2 development". Paragraph 4.5 referred to the selection criteria, paragraph 4.6 to the advice in paragraphs 33 and 34 of Circular 02/99.
50. Under the heading "Characteristics of development", paragraphs 4.7 to 4.22 described the development proposed. Paragraph 4.7 said that "[careful] account has been taken of the size of the Withdean Sports Complex as extended by the proposed development."
51. In the part of the document headed "Location of development" paragraph 4.27 repeated the observation made in paragraph 4.16 of the August 2012 screening opinion that "[the] location of development is not such as to make it likely the extended Sports Complex will have significant effects on the environment."
52. Under the heading "Characteristics of the potential impact", paragraphs 4.28 to 4.37 addressed the potential impacts of the whole extended sports complex, again both buildings and open areas. Paragraph 4.28 said that "[none] of the … potential impacts is considered likely, either individually or cumulatively[,] to give rise to significant environmental effects. …". Paragraph 4.32, like paragraph 4.18 of the August 2012 screening opinion, said that "noise and light pollution impacts" would be "limited to the immediate locality" and "would not be significant in terms of the wider geographical area of the neighbourhood and certainly not the Withdean neighbourhood". Paragraphs 4.33 and 4.34 stated:

"4.33 The potential impacts identified are not complex and they can be controlled. Any light pollution or noise pollution caused by the development could also be technically controlled at the design stage and can be reduced to mitigate their impact [sic]. The impacts are technically reversible as well or can be further mitigated following implementation by additional screening or sound insulation.

4.34 … In consideration of the cumulative impact of noise by the development overall, the other potential sources of noise would be from tannoy announcements and from amplified noise within the fitness facilities. Their impact could potentially impact on those neighbours immediately adjoining the site if uncontrolled. There have been complaints received from two individual properties adjoining the site which have been investigated by the Council's Environmental Health Officer. They were found to be one off incidents where excessive use of the PA system at a school sports day or amplified music from the fitness suite were made. Regular monitoring is being carried out and the strict use and management of these facilities has ensured that complaints have been reduced. Between June 2011 and June 2012, five complaints from two properties have been received. It is not considered therefore that the use of these facilities would have such a significant impact on the wider area that would make the development EIA development."

Paragraph 4.36 referred again to the advice in paragraph 33 of Circular 02/99, and said that "[neither] the development proposed in Application A nor the extended sports complex as a whole falls with any of [the] categories" listed there. Paragraph 4.37 was in similar terms to paragraph 4.19 of the August 2012 screening opinion. Again, the conclusion was that the "potential impacts from the extended Sports Complex", considered both "individually and cumulatively … are not likely to have significant effects on the environment".

53. The "Conclusion" in section 5, was in substantially the same terms as that in the screening opinion for the extension of the sports centre. Paragraph 5.1 referred to the advice in paragraph 33 of Circular 02/99, and said it was "considered that there would be no wider impact than within the vicinity of the site which would make it a development requiring an Environmental Impact Assessment". Paragraph 5.2 confirmed that the development had "been treated as Schedule 2 development". Paragraph 5.3 said the development was "not likely to have significant effects on the environment by virtue of factors such as its nature, size and location". Paragraph 5.4 recommended the adoption of "a formal screening opinion that an EIA is not required for the proposed development".

The second claim for judicial review

54. The second claim for judicial review, challenging the two planning permissions granted on 21 December 2012, was lodged with the court on 21 January 2013. The essential allegations, now made about the 2012 screening opinions, are similar to those made in the first claim.

The claimant's request for a screening direction in October 2012

55. On 25 October 2012 the claimant's solicitors applied to the Secretary of State for a screening direction under regulation 4(8) of the 2011 regulations. On 18 December 2012 the Secretary of State refused to make a direction. His response to the criticisms made about the 2012 screening opinions was set out in the National Planning Casework Unit's letter of 18 December 2012. This acknowledged the "comprehensive nature" of the City Council's screening opinions and said the issues raised "do not call into question the validity of the planning authority's assessment that EIA is not required …".
56. On 15 January 2013 the Senior Planning Manager at the Department for Communities and Local Government confirmed that the Secretary of State would "consider any future request for an EIA screening direction in light of the EIA Regulations and any associated guidance that is applicable at that time, taking into account all of the relevant considerations at the time of any such request".

The issues for the court

57. There are six main issues. They are:

(1) whether any of the three planning permissions under challenge is invalid because in screening the development the City Council failed to consider the scheme as a whole;

(2) whether any of the three planning permissions under challenge is invalid because in screening the project the City Council erred in splitting it into two or more discrete sub-projects;

(3) whether any of the three planning permissions under challenge is invalid because in screening the development the City Council unreasonably concluded that it would not be likely to have significant effects on the environment;

(4) whether either of the planning permissions granted by the City Council in December 2012 is invalid because in screening the development the City Council wrongly relied on guidance in Circular 02/99;

(5) whether either of the planning permissions granted by the City Council in December 2012 is invalid because the City Council unlawfully assumed, at the screening stage, that mitigation measures would reduce the environmental impacts of the development to insignificance; and

(6) whether, despite the admitted flaws in the June 2011 screening opinion, the August 2011 planning permission was lawfully granted or became lawful through the screening process undertaken by the City Council in October 2011.

Issues (1), (2) and (3) arise in both claims. Issues (4) and (5) arise only in the second, and issue (6) only in the first.

Relevant law

The legislative framework

58. One of the recitals to Council Directive 85/337/EEC, as amended ("the EIA Directive") sets out the basic principle that "development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out …". Article 2(1) of the EIA Directive requires member states to "adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects". Article 4(2) imposes on member states the obligation to determine whether a project of a type listed in Annex II is to be made subject to EIA. Such a determination must be "made available to the public" (Article 4(4)). Guidance on EIA has been issued by the European Commission. Three guidance documents were mentioned in this case: the document entitled "Interpretation of definitions of certain project categories of Annex I and II of the EIA Directive", the "Guidance on EIA Screening" and the "Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Iterations".
59. In World Wildlife Fund v Autonome Provinz Bozen (Case C-435/97) [2000] 1 CMLR 149 the European Court of Justice said (in paragraph 70 of its judgment) that it was for the authorities of member states to "take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment". In Commission v Ireland (Case C-215/06) the European Court of Justice emphasized (in paragraph 49):

"Member States must implement [the EIA Directive] in a manner which fully corresponds to its requirements, having regard to its fundamental objective which, as is clear from Article 2(1), is that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a requirement for development consent and an assessment with regard to their effects (see, to that effect, Case C-287/98 Linster [2004] ECR I-723, paragraph 52, and Case C-486/04 Commission v Italy [2006] ECR I-11025, paragraph 36)."

60. The 1999 regulations and now the 2011 regulations transpose into domestic law the requirements of the EIA Directive. The 2011 regulations superseded the 1999 regulations, with effect from 24 August 2011. In both the 1999 regulations and the 2011 regulations "EIA development" has been defined, in regulation 2, as including "Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location". Regulation 4 contains general provisions on screening. Under regulation 4(6), where a local planning authority has to decide whether Schedule 2 development is EIA development, it must take the relevant selection criteria in Schedule 3 into account. Those criteria are set out under three headings: "Characteristics of development", "Location of development", and "Characteristics of the potential impact". Regulation 3(4) of the 2011 regulations prohibits a local planning authority from granting planning permission for EIA development unless it has first considered the "environmental information", which includes the "environmental statement". Under regulation 5(1) a person who is "minded to carry out development" may request the local planning authority to adopt a "screening opinion", defined in regulation 2 as a "written statement of the opinion of the local planning authority as to whether development is EIA development". The Secretary of State may make a "screening direction" under regulation 4(8), either of "[his] own volition" or "if requested to do so in writing by any person".

Schedule 2

61. The table in Schedule 2 to the 2011 regulations sets out descriptions of development and the applicable thresholds and criteria. The table includes, in paragraph 10(b), "Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas". In column 2 the relevant threshold or criterion is stated to be "The area of the development exceeds 0.5 hectare". The 2011 regulations differ from the 1999 regulations in their provisions for changes to or the extension of existing development. Paragraph 13(b) in the table in Schedule 2 to the 2011 regulations refers to "Any change to or extension of development of a description listed in paragraphs 1 to 12 of column 1 of this table, where that development is already authorised, executed or in the process of being executed". Such development is Schedule 2 development if "Either – (i) The development as changed or extended may have significant adverse effects on the environment; or (ii) in relation to development of a description mentioned in column 1 of this table, the thresholds and criteria in the corresponding part of column 2 of this table applied to the change or extension are met or exceeded" (my emphasis). In the table in Schedule 2 to the 1999 regulations paragraph 13(a) referred to "Any change to or extension of development of a description listed in … paragraphs 1 to 12 of Column 1 of this table, where that development is already authorised, executed or in the process of being executed, and the change or extension may have significant adverse effects on the environment". The relevant provision in column 2 was "(i) In relation to development of a description mentioned in Column 1 of this table, the thresholds and criteria in the corresponding part of Column 2 of this table applied to the change or extension (and not to the development as changed or extended)" (my emphasis).

Case law on screening

62. The correctness of a local planning authority's decision on whether a particular project falls within one of the categories in the schedules to the regulations is ultimately for the court to consider as a matter of law (see paragraph 8 of Buxton L.J.'s judgment in R. (Goodman) v Lewisham London Borough Council [2003] Env. L.R. 28). But whether a project falling within any of the categories in Schedule 2 is EIA development is a question for the authority, subject to review by the court on "the familiar common law Wednesbury standard" (see paragraphs 21 to 23, and 40 to 42 of Beatson L.J.'s judgment in R. (Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 115). When the court is considering the lawfulness of the approach adopted in a screening process, it must establish whether the right test has been applied by the decision-maker. The test is whether the project is likely to have significant effects on the environment. The likelihood that a potential effect will occur and its significance for the environment if it does are matters for the decision-maker to judge, not the court (see the judgment of Pill L.J., with whom Toulson and Sullivan L.JJ. agreed, in R. (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869).

Issues (1) and (2): screening the "project"

Submissions

63. Mr Upton submitted:

(1) For the reasons set out in the claimant's grounds the court should conclude that the City Council failed, on each occasion, to screen the project it was obliged to screen if it was to comply with the statutory scheme for EIA.

(2) The project that had to be screened in 2011 was "[the] urban development project known as the Withdean Stadium Complex, as changed or extended by the development proposed under [application no. BH2011/00973] together with any reasonably foreseeable development, [of the complex], including (i) the retention of further elements of previous use of the site by Brighton and Hove Albion Football Club (as continued by the planning permission granted on application no. BH2012/02765), (ii) the further development proposed in application no. BH2012/02766, and (iii) the "Masterplan" development including the "Future Plans" described in the September 2011 report". The project that had to be screened in 2012 was "[the] urban development project known as the Withdean Stadium Complex, as changed or extended by the development proposed under [applications nos. BH2012/02765 and BH2012/02766], together with any reasonably foreseeable development of the complex, including those elements of the "Masterplan" not already subsumed in the proposed extension of the sports centre".

(3) The City Council was right to concede that the June 2011 screening opinion was unlawful, in view of the decision of Collins J. in Baker. The City Council ought not to have screened the development by comparing existing operations and impacts with proposed operations and impacts.

(4) In the October 2011 screening opinion the City Council had failed to consider both "the previous experience of more intensive and intrusive use" on the site and "the further intended operations proposed in the WSC Masterplan of September 2011". It had also failed in various ways to grasp "the project as a whole". It had, for example, ignored "the use of the football pitch and multi-use area". It had wrongly treated the project as merely a "community leisure facility … holding events of local significance". And it had failed to consider the whole range of potential effects contemplated in Annex IV of the EIA Directive.

(5) The 2012 screening opinions also failed to have regard to the project "as a whole", and to screen all potential effects. They had avoided the "likely future activities, operations or development" anticipated in the "WSC Masterplan". Neither of them properly appraised the likely combined effects of the two proposals.

(6) All four of these screening opinions were flawed by the City Council's "project splitting". The June 2011 screening opinion said the public address system was not part of the project, and omitted to consider the use of the floodlights. In the screening opinion of October 2011 the City Council had "split a long term project of intensive use of the WSC since 1998 into a series of temporary three year decisions". It had failed "to accept that local residents [had] had to suffer over 11 years of significant disturbance and adverse environmental impacts", and to "consider the future use detailed in the WSC Masterplan". The 2012 screening opinions betrayed similar errors. The City Council had "failed to recognise the cumulative uses at the site and … the likely future use". The approach it took cannot be reconciled with decisions of the European Court of Justice cautioning against "salami-slicing", nor with the advice in the EC Guidance "Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions".

64. For the City Council Mrs Harriet Townsend submitted:

(1) The City Council reconsidered its screening decision in October 2011 because it accepted that the 2011 project had not been correctly assessed in the June 2011 screening opinion. In the June 2011 screening exercise it had followed the approach suggested in paragraph 46 of Circular 02/99, without recognizing the implications of the court's decision in Baker.

(2) Neither the October 2011 screening opinion nor the two prepared in 2012 suffered the same defect. All three of those screening processes were properly conducted. In all three the project in question had been correctly identified, and correctly considered against the criteria in Schedule 3. In each of those processes the whole project was screened.

(3) To extend the project by adding in previous uses of the site that had by now come to an end would have been unreal. Bringing into the appraisal effects such as the disturbance caused by football crowds at matches when Brighton and Hove Albion Football Club were using the stadium as their home ground would have made no sense.

(4) The ideas in the Masterplan were nowhere near firm enough to include in the 2011 screening process. The 2012 screening opinions had addressed the potential effects of the stadium complex as extended by the development, including the development in both of the 2012 proposals. Options beyond Phase 1 of the Masterplan lacked the certainty to qualify as parts of the project at that stage.

(5) There has been no "project splitting" in this case, either intentional or inadvertent.

(6) None of the other criticisms made in the claimant's grounds and elaborated in Mr Upton's submissions had any merit at all.

Discussion

65. It is convenient to take these two issues together.
66. Article 1(2) of the EIA Directive defines a "project" as meaning "the execution of construction works or of other installations or schemes" or "other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources". A broad interpretation should be applied to the scope of the project (see paragraph 1.3 of the European Commission Guidance "Interpretation of definitions of certain project categories of Annex I and II of the EIA Directive", referring to the decision of the European Court of Justice in Aannamaersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403). In this case the relevant part of the definition in article 1(2) is that relating to works of construction.
67. The starting point for a local planning authority undertaking a screening exercise must be an accurate understanding of the "project" before it. The project should be capable of being clearly defined. Usually there will be no difficulty about this. In most cases the project will be the development described in the application for planning permission, or, if the request for a screening opinion is made before an application for planning permission is submitted, the development described in the request. But there will be cases where the development for which permission is sought is truly part of a larger project, including other development already completed or under construction, or successive sections or phases of a comprehensive scheme.
68. In the screening process the decision-maker must consider nothing less – and nothing more –than the development in its entirety. It must ascertain what the development is, how and when it will be constructed, and how it will be used when complete. It must discern what the physical nature and extent of the development will be, neither aggregating it with other projects that are in reality separate from it nor sub-dividing it into portions that represent less than the totality of what is proposed. It may be necessary for the decision-maker to consider whether, in addition to the proposal that is – or is to be – the subject of an application for planning permission, there is other development forming part of the same project. In this case, for example, there were, in 2012, two applications for development on the site, which together comprised the project that had to be screened.
69. The project itself will not generally include development that was once on the site but has now been removed or whose use has come to an end, or further development that might – or might not – later come forward. When identifying the project it has to screen an authority does not have to resurrect the past or speculate about proposals the future may bring.
70. Equally, as Mrs Townsend acknowledged, the decision-maker's approach to establishing what the project is should not be dictated by the applicant's strategy in promoting his development, whether in a single application or split into two or more separate proposals.
71. The mischief of "salami-slicing" was considered by the European Court of Justice in the case concerning the Madrid urban ring road (Ecologistas en Accion-CODA v Ayuntamiento de Madrid (Case C-142/07) [2009] PTSR 458. In its judgment in that case (at paragraph 44) the court emphasized that the purpose of the EIA Directive "cannot be circumvented by the splitting of projects, and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out [EIA] when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) …".
72. However the project itself is defined, the analysis required in the screening process may have to embrace a wider consideration of environmental effects. Annex IV of the EIA Directive, which explains the information referred to in Article 5, states that the description of the likely significant effects of the proposed project on the environment "should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project". As the European Court of Justice held in Abraham v Region of Wallonia (Case C-02/07) [2008] Env LR 32 (in paragraphs 41 to 45), the process of screening must consider not merely the likely effects of the works themselves but also the impacts liable to result from the use and exploitation of the development once constructed. In paragraph 42 of its judgment in that case the court said that the EIA Directive "seeks an overall assessment of the environmental impact of projects or of their modification". In paragraph 43 the court added that it would be "simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works".
73. Cumulative effects can include – and often will – the effects of other development on the site or on adjacent land, or both. Guidance on the approach to be taken to the assessment of such impacts is to be found in the European Commission's "Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions". That guidance recognized, in the context of scoping (on page 66), that consideration should be given to "historical or potential future impacts which may affect the assessment", noting that activities carried out "in the past, present and future can all have a bearing on the project being assessed and will influence the time frame set for the EIA". It adds that determining how far back in time the decision-maker must go in gathering the information it requires "will depend on the project and the historical use of the area" (ibid.).
74. I turn to consider what the City Council did in this case.
75. The City Council has not sought to defend the June 2011 screening opinion. It has conceded that, as paragraph 4.4 of the screening opinion makes plain, it did not follow the approach indicated by Collins J. in Baker and now incorporated into the 2011 regulations. Collins J. concluded (in paragraph 53 of his judgment) that paragraph 13 of Schedule 2 to the 1999 regulations did not properly implement the EIA Directive because it sought "to limit consideration for the purposes of screening to … the change or extension on its own". The advice in paragraph 46 of Circular 02/99 can be read as support for the approach the City Council took. It states, under the heading "Changes or extensions to existing or approved development", that development comprising a change or extension "requires EIA only if the change or extension is likely to have significant environmental effects". However, the City Council does not now rely on that advice to justify what it did in the June 2011 screening process. It accepts that the approach it took was wrong (as Mrs Townsend confirmed in paragraph 57 of her skeleton argument).
76. The City Council says, however, that its error was put right in the October 2011 screening opinion. In that screening exercise no weight was given to the June 2011 screening opinion (paragraph 3.2). The City Council now sought to comply with the new regime in the 2011 regulations (paragraph 3.6). It considered the development "as altered/extended by this proposal" (paragraph 3.15), "this development as a whole" (paragraph 3.16), "the development as extended" (paragraphs 5.2, 5.3 and 5.7), and "the resultant development" (paragraph 5.4). It concluded (in paragraph 5.7 a)) that the development as extended was not development that "may have significant adverse effects on the environment", and so was not Schedule 2 development. But the analysis did not stop there. The City Council went on to conclude (in paragraph 5.7 b)) that in any event "the development as extended" was "not … likely to have significant effects on the environment by virtue of its nature, size or location, bearing in mind the criteria in Schedule 3 of the 2011 Regulations", and was, therefore, "not EIA development". So the City Council cannot be said to have failed to appraise the potential effects of the development as Schedule 2 development. It plainly did that.
77. Nor can there be any doubt that in the 2012 screening opinions as well the City Council screened not merely the proposed extension itself but the development on the site as it would be in its extended form as a result of the proposals. Both of those two screening opinions dealt with what was now a composite project. The August 2012 screening opinion for the proposed extension of the sports centre took into account the development that was to be proposed in the retention application. Its paragraph 3.4 makes this clear. Throughout the document expressions such as "the Sports complex as extended" and "the extended Sports complex" recur. The same approach was taken in the November 2012 screening opinion for the proposed retention of development on the site. One can see this, for example, in paragraph 3.9 of that document. I therefore reject the contention that in the 2012 screening opinions the City Council did not consider the project as a whole. It obviously did.
78. In the 2012 screening opinions the City Council concluded, as it had in the screening opinion of October 2011, that the development as extended was not development that "may have significant adverse effects on the environment". Mrs Townsend told me – though this was not explained either in the screening opinions themselves or in the City Council's evidence – that the area of the several portions of the stadium site comprised in the extension application amounted to less than half a hectare, which is the relevant area for the purposes of paragraph 13(b)(ii) of the table in Schedule 2 to the 2011 regulations. Therefore, said Mrs Townsend, the City Council would have been entitled to treat the proposed extension, taken on its own, as not being Schedule 2 development. But this was not the basis of the City Council's conclusion that the project was not EIA development. The City Council analysed the potential effects of the development, taking it to be Schedule 2 development. Both of the 2012 screening opinions assumed that the development "may have significant adverse effects on the environment". And bearing in mind that the total area of the site, at 5.9 hectares, was well in excess of the threshold of "0.5 ha" in paragraph 10(b), the City Council thought it "appropriate and prudent to treat the development as Schedule 2 development" (paragraphs 4.2 and 5.2 of the August 2012 screening opinion and the corresponding paragraphs of the November 2012 screening opinion).
79. I cannot accept that in the October 2011 screening opinion or in either of the two it prepared in 2012 the City Council divided a long-term project into a series of temporary consents or sub-projects. It did not fail in any of those three screening processes to focus on the project that had to be screened. On each occasion it assessed the potential effects of the development with a true understanding of the nature and content of the project as a whole. It did not screen less than the full project. And it did not split the project into separate components and assess those individual parts in isolation from the others. In short, it was not guilty of project-splitting or "salami-slicing".
80. Having correctly established what the project was, the City Council considered its potential effects in a comprehensive and realistic way. It did not leave out any cumulative effects that it ought to have considered. And it did not ignore any potential effects on the local or wider environment or on the living conditions of local residents.
81. To have brought into the screening exercise, either as part of the project itself or as being likely to have cumulative effects, uses of the site that had ceased was not merely unnecessary; it would have been wrong. The past use of the site by Brighton and Hove Albion Football Club was not part of the project to be screened, either in 2011 or in 2012. That use had come to an end some time before the present proposals were submitted. It had no environmental legacy of its own. Much of the physical development associated with it had been, or was being, removed. To have introduced a defunct use of the site into the screening process would have been unreal. The City Council was right not to do it.
82. A similar conclusion applies to possible future development on the site.
83. I do not accept that the City Council misunderstood the scope for further proposals contemplated in the Masterplan.
84. In 2011 the Masterplan had not yet crystallized into anything more than a set of ideas for possible future development on the site. This is clear from paragraph 3.19 of the officer's report of 29 September 2011. The officer was seeking the views of members. At that stage the ideas for the future of the site were still at an early point in their evolution. They could not properly be described as part of a project.
85. By the time the City Council came to screen the two proposals submitted for planning permission in 2012 its Cabinet had considered a further report – the report that went to it in April 2012 – which referred to recommendations made in the Sports Facilities Plan 2012-22. As has been explained in the City Council's evidence, the Sports Facilities Plan is not a planning policy document. The officer's report for the April 2012 meeting divided the definite proposals in Phase 1 from the options whose feasibility was to be considered, in Phase 2. The Phase 1 works became the subject of an application for planning permission (BH2012/02766) – one of the two proposals screened by the City Council in 2012. The line between a definite proposal and provisional or possible options for further development was clear. The City Council was well aware of the difference. It screened the proposal that could properly be described as being part of the 2012 project, alongside the proposal for the retention of existing development on the site.
86. I cannot fault the City Council's approach. The Phase 2 options explored in the Sports Facilities Plan for improved sports provision in the city over the next 10 years did not belong to the project screened in August and November 2012. Nor should they have been brought into account in the screening process. Those options were too uncertain, not only in their content and timing but also in their prospects of coming to fruition, to be regarded as part of the project. And it was neither appropriate nor possible for their potential effects to be judged at that stage.
87. I come finally, and briefly, to the sundry further points made in the claimant's grounds. I have considered them all but find none of them cogent.
88. The City Council did not overlook the potential use of any of the various parts of the site, including not only the various buildings but also the open areas and the activities they could accommodate. In each of the screening opinions it described the site and the layout of facilities on it. It did not, for example, ignore the football pitch and the athletics track and their potential use. There is no reason to think that it had forgotten the site's allocation as a major sporting venue in the 2005 local plan. But, as it said in paragraph 4.17 of the October 2011 screening opinion, the site retained the character of a "community leisure facility with indoor and outdoor sporting facilities [and] with spectator facilities capable of holding events of local significance".
89. The lighting and the public address system on the site were not ignored in the screening analysis. Their use was dealt with in the June 2011 screening opinion (in paragraph 4.10). This was also done in the October 2011 screening opinion (in paragraphs 4.12 and 4.13), and in both of the 2012 screening opinions (in paragraphs 4.11 and 4.12 of the August 2012 screening opinion and paragraphs 4.32 to 4.34 of the November 2012 screening opinion). The City Council was plainly aware that complaints about noise coming from the site had been made in the past. It did not need to refer in its screening opinions to the noise abatement notice of July 2008.
90. In my view, none of the specific criticisms made in this part of the claim shows any lack of rigour in the City Council's screening of the development.
91. In summary, the City Council was in my view right to offer no defence to the attack on the screening opinion it adopted in June 2011. But I reject all of the other submissions – oral and written – that Mr Upton made on these grounds. In each of the three of the screening opinions the City Council has sought to defend the project that had to be screened was screened, in its entirety, as Schedule 2 development. And this was done in a comprehensive way, considering all relevant potential effects on the environment. The City Council thus followed both the letter and the spirit of the EIA Directive and the regulations, and did not act contrary to any relevant jurisprudence or to the guidance on EIA issued by the European Commission.

Issue (3): the City Council's screening judgment

Submissions

92. Mr Upton submitted:

(1) In each of its screening processes the City Council "exceeded its discretion" when considering the project's potential effects on the environment. Such a submission is not an easy one to advance; the decision in Evans makes that clear. But, as was stressed in Loader (by Pill L.J. in paragraph 43 of his judgment), the decision-maker must adopt a precautionary approach. The City Council failed to do that.

(2) In several respects the City Council did not exercise its judgment reasonably. For example, in the June 2011 screening opinion it concluded that the project did not require EIA because its effects would be significant only for those who lived close to the site (paragraph 5.1), an approach that undermines Article 2(1) of the EIA Directive. In the October 2011 screening opinion the City Council considered whether significant environmental effects were likely, and concluded that they were not. But, in view of the potential impacts identified and the history of the site and its use, this was not a reasonable conclusion to reach. There were patent shortcomings in the analysis relating to light and noise pollution, and traffic on local roads. The City Council had ignored many of the significant effects already being caused, as well as cumulative and future impacts. It had considered only the effects "directly related" to the project. It had perpetuated these failings in the 2012 screening opinions. Here again it was straining to conclude that the project was not EIA development when there were, in fact, "considerable environmental effects". The only reasonable conclusion in all of these screening processes was that there were likely to be significant effects on the environment.

93. Mrs Townsend submitted:

(1) Applying the principles referred to in Loader and Evans, the court should have no hesitation in rejecting this ground of the claim. The claimant was questioning decisions for which, under the regulations, a local planning authority is responsible. The City Council had exercised its judgment properly, concluding on each occasion that the project before it was not likely to have significant effects on the environment. The claimant had not shown that this was an unreasonable conclusion.

(2) There was no substance either in the general points made by Mr Upton or in the specific allegations about particular passages in the screening opinions. When one reads those documents as they should be read – fairly and as a whole – there is no evidence of analysis that was inaccurate, incomplete or irrational.

Discussion

94. The court must consider whether in each of the contentious screening processes in this case – those undertaken in October 2011, August 2012 and November 2012 – the City Council addressed the right question, and, in doing so, gave reasons that are adequate and clear. In my view, it did. I cannot accept any of Mr Upton's submissions to the contrary.
95. The crucial question for the City Council in each of these the screening processes was whether the proposed development was likely to have significant effects on the environment "by virtue of factors such as its nature, size or location". This is the question set for any decision-maker screening a project under the regulations. It is inherent in the definition of EIA development in regulation 2 of the 2011 regulations (which reproduces regulation 2 of the 1999 regulations).
96. The nature of the judgment required in the screening process has been described in different ways in the case law. It is, essentially, a planning decision-maker's judgment. And it is not, therefore, the kind of judgment the court will undo, unless it is shown to have been outside the range of a reasonable decision on the relevant facts. As the Court of Appeal stressed in R. (Jones) v Mansfield District Council [2003] EWCA Civ 1408, the question on which the local planning authority must form its opinion – whether the project is likely to have significant effects on the environment – is a question of degree; it is the sort of question an authority is familiar with, and well equipped to answer (see paragraph 38 of the judgment of Dyson L.J., as he then was, and paragraph 61 in the judgment of Carnwath L.J., as he then was). As Laws L.J. described it in Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 (in paragraph 33 of his judgment), it is "quintessentially a matter of judgment". And the judgment formed by the authority may be reviewed by the court only on a conventional Wednesbury basis (see the judgment of Pill L.J. in Loader, at paragraph 31). What the authority must do is to apply the criteria set out in the regulations, and exercise its judgment "focusing on the circumstances of the particular case" (see paragraph 43 of the judgment of Pill L.J. in Loader). To see whether the authority has done this, the court must read the screening opinion fairly as a whole.
97. In screening the projects before it in 2011 and in 2012 the City Council considered the potential effects of the development as Schedule 2 development – as an "urban development project" within paragraph 10(b) of the table in Schedule 2, which includes "… the construction of … sports stadiums [and] leisure centres …".
98. Leaving aside the admitted error in the June 2011 screening opinion, I do not think the City Council's approach in any of these screening processes was infected by Wednesbury unreasonableness, by a failure to take into account the relevant considerations, or by the taking into account of considerations that were irrelevant. In each process the City Council went about its task thoroughly and with the right considerations in mind.
99. Mr Upton did not suggest that the information before the City Council when screening these proposals was either deficient or inaccurate. Nor can it be said that the City Council failed to apply to that information the relevant selection criteria in Schedule 3 of the regulations – relating to the characteristics of the development, its location, and the characteristics of the potential impact. Each of the screening opinions was deliberately structured to address those main considerations. The City Council applied the test it had to apply – whether the project was likely to have significant effects on the environment. It exercised the judgment entrusted to it by the regulations. It found, on each occasion, that the project it was considering was not likely to have significant effects on the environment. And this seems to me to have been, on each occasion, a conclusion it could properly reach on the material before it.
100. The City Council recognized that there were several potential impacts – including visual effects, the effects of light emanating from the development, the effects of noise generated by the use of the site, including noise from the public address system, the effects on air quality from the increase in road traffic caused by the development, and the effects on the flow of traffic and the availability of car parking on local roads. But it was open to the City Council to conclude, and it did conclude, that none of the impacts was likely to be a significant effect on the environment. Those effects were not ignored or minimized. They were considered by an officer familiar with the site and its planning history, and his judgments on them became the City Council's own when the screening opinions were adopted. It is not for the court to substitute its own fact-finding for the officer's or to venture its own judgment on the questions of likelihood and significance. The claimant may disagree with the City Council's opinion, in each case, that the project was not EIA development, but in my view this was not an opinion beyond the limits of reasonable judgment.
101. Some of the points made by Mr Upton on this issue duplicated his submissions on others, but, for the sake of completeness, I shall mention them here.
102. First, I reject the suggestion that the City Council was striving to reach a conclusion that the development before it was not EIA development. Mr Upton made it clear that he was not suggesting that the City Council had acted in bad faith. He was right to do so. There is no evidence before the court to support any allegation of that kind.
103. Secondly, as Mrs Townsend submitted, the possibility that the proposed uses of the site would affect the living conditions of local residents did not mean that EIA was required. However, the City Council did not make the mistake of thinking that a local effect must automatically be regarded as unlikely to be significant.
104. Thirdly, the argument that a likely significant effect on the environment may be regarded as an effect capable of influencing the outcome of the application for development consent is unsound. As Pill L.J. said in Loader (at paragraph 45) "[whether] the perceived environmental effect has an influence on the development consent decision is a relevant consideration but cannot in itself answer the question to be posed." To establish that an environmental effect will influence the decision on the application for planning permission "may well be a necessary requirement for a decision that development is EIA development but it is not determinative of whether the effect are likely to be significant and "ought to be considered"" (ibid.).
105. Fourthly, the City Council did not, in my view, fail to apply the precautionary principle. It was alive to the degree of uncertainty as to environmental impacts at the date of its decisions, as it had to be (see paragraph 43 of Pill L.J.'s judgment in Loader). For example, its reliance on light or noise pollution being "technically controlled at the design stage" in the analysis in the 2012 screening opinions was not unreasonable (paragraph 4.18 of the August 2012 screening opinion and paragraph 4.33 of the November 2012 screening opinion). It was not relying on the design of the development being established or modified after planning permission had been granted. Arrangements for lighting the sports centre and controlling noise from its use were going to be settled in the design itself. Significant effects on the environment would thus be avoided.
106. And fifthly, I do not accept that the comment in paragraph 4.18 of the August 2012 screening opinion about "peaks and troughs" in the use of the site is meaningless and unrelated to other parts of the analysis. It may not have been very elegantly put. But when read in its context it does make sense.
107. On this issue, therefore, Mr Upton's argument fails.

Issue (4): Circular 02/99

Submissions

108. Mr Upton submitted:

(1) The City Council was wrong to rely on out of date guidance in Circular 02/99. The advice in paragraph 33 of the circular was misleading, as the Government itself had recognized. This was clear from the consultation draft amended circular on EIA, published in June 2006. The draft circular had said nothing about EIA generally being needed only "for major developments which are of more than local importance".

(2) This point had been recently considered in R. (TWS) v Manchester City Council [2013] EWHC 55 (Admin). It had been held there (in paragraph 121 of the judgment) that paragraph 33 of the circular did not mean developments of only local importance would, as a rule, be incapable of satisfying the criteria in Schedule 3. However, the court would always look at how the decision-maker had relied on this guidance. In this case, in the 2012 screening opinions, the City Council had equated local effects with insignificant effects, which it ought not to have done.

109. Mrs Townsend submitted:

(1) This ground of the second claim is unarguable. The same argument on the meaning of paragraph 33 of Circular 02/99 had been run in TWS. It had been rejected in that case, and it should be here.

(2) The City Council had not misled itself by assuming that a local effect could never be significant. But, as it had seen, its conclusion that certain effects would only be local was relevant to the question of likely significance.

Discussion

110. I do not accept Mr Upton's submissions on this issue. The guidance in paragraphs 33 to 35 of Circular 02/99 is not misleading, and in any event the City Council did not apply it unlawfully in the screening process for any of the proposals in this case.
111. It is plain that the local extent or character of an effect on the environment can be relevant to the question of its likely significance. Schedule 3 to the 2011 regulations includes as one of the selection criteria relating to the "[characteristics] of the potential impact" in paragraph 3, "(a) the extent of the impact (geographical area and size of the affected population)". This clearly implies the need to consider whether an impact would be experienced only in a local area, or only by local people. Sometimes an authority will be able to conclude that a particular effect on the environment is not likely to be significant because it will only be local. A local effect may be likely to be significant; it may not. This will depend on the nature of the effect and the location. If, for example, the local effect is on an adjacent conservation area, or a listed building, or a site of conservation interest or importance, or a sensitive landscape, or an area with some other kind of specific protection, it may be likely to be significant. Otherwise, it may well not be.
112. For the same reasons as I gave in TWS (in paragraphs 120 and 121 of my judgment) I reject the argument that the advice in paragraphs 33 and 35 of Circular 02/99 is at odds with the jurisprudence of the European Court of Justice in Kraaijeveld and subsequent cases. Paragraphs 33 and 35 of Circular 02/99 do not say that Schedule 2 development will avoid the need for EIA if its effects on the environment are likely to be only local. Paragraph 33 says this:

"… In the light of [the selection criteria in Schedule 3], the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 development in three main types of case:

a. for major developments which are of more than local importance (paragraph 35);

b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and

c. for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42)."

This advice does not imply that developments of only "local importance" will, as a rule, be incapable of satisfying the criteria in Schedule 3. Paragraph 35 of the circular says that "[in] some cases, the scale of a development can be sufficient for it to have wide-ranging environmental effects that would justify EIA", and that there will be "some overlap" between the circumstances in which EIA is required because of the scale of the development proposed and those in which the Secretary of State may wish to exercise his power to call an application in. None of this means that developments with effects that are not wide-ranging will always be, or will generally be, exempt from EIA. It is true that the consultation draft of amended guidance issued by the Government in 2006 and the more recent Scottish Circular 03/11 do not repeat what is said in paragraph 33 of Circular 02/99. However, as Pill L.J. said in paragraph 44 of his judgment in Loader, "the criteria in the annexes to the Regulations justify the approach to the question proposed in Circular 02/99, paras 33, 34 and annex A."

113. But anyway, as in TWS, the City Council did not base its screening decisions on the belief that an environmental effect cannot be significant if it is only local, or that this is the Government's view. The City Council did not slavishly follow the advice in Circular 02/99 without appreciating that it needed to be read now in the light of the 2011 regulations. In paragraph 3.6 of the October 2011 screening opinion it noted that the guidance in Circular 02/99 "must be treated with some caution and not followed insofar as it is inconsistent with legal requirements within the 2011 [regulations]." Both of the 2012 screening opinions referred to the advice in paragraph 33 of the circular (paragraphs 4.6 and 5.1 of the August 2012 screening opinion and paragraphs 4.6, 4.36 and 5.1 of the November 2012 screening opinion). But those passages of the 2012 screening opinions do not reveal a misunderstanding of the advice in the circular or that the City Council inferred from it that a local effect cannot be significant. The City Council did not mislead itself into a faulty approach.
114. In my view, therefore, this ground is untenable.

Issue (5): mitigation measures

Submissions

115. Mr Upton submitted:

(1) In paragraph 4.18 of the August 2012 screening opinion and again in paragraph 4.33 of the November 2012 screening opinion, the City Council relied on mitigation measures as a means of reducing the adverse effects of light and noise pollution. It held these over to the "design stage".

(2) That was inconsistent with the right approach to mitigation measures in a screening process, made clear by Sullivan J. (as he then was) in R. v South Cambridgeshire District Council, ex parte Lebus [2003] Env LR 17 (in paragraphs 45 and 46).

116. Mrs Townsend submitted:

(1) This ground of the second claim is misconceived. This was not a case of an authority avoiding EIA by relying inappropriately on mitigation. The City Council did not, in fact, rely on any mitigation that was uncertain in the proposals submitted for planning permission.

(2) Again there is a parallel with TWS, where a similar argument had been put forward and rejected (in paragraphs 125 and 126).

Discussion

117. This ground too fails on the facts. The City Council did not unlawfully take into account mitigation measures that were going to be applied to the development either through conditions or a planning obligation if permission were granted.
118. The relevant principles were drawn together by the Court of Appeal in Loader. In Jones Dyson L.J. said (at paragraph 38) that a local planning authority cannot rely on conditions and undertakings "as a surrogate for the EIA process", and cannot conclude that a development is unlikely to have significant effects on the environment "simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings". However, remedial measures contemplated by such controls "can be taken into account to a certain extent" in the authority's exercise of judgment.
119. In this case the issue relates to a short section in each of the 2012 screening opinions, expressed in very similar terms. In paragraph 4.18 of the screening opinion of August 2012 it was noted that complaints about noise and light pollution had in the past been made by residents living very close to the site, and that these had been dealt with. The site was shielded by trees and hedgerows and separated from residential areas to the east by the railway viaduct. The impact of noise and light on local residents would thus be "limited to the immediate locality". The impacts were judged not to be significant in the wider area. They could be "technically controlled at the design stage and … reduced to mitigate their impact". They were "technically reversible" and could also be mitigated by "additional screening or sound insulation". These conclusions were repeated in the November 2012 screening opinion (in paragraphs 4.32 and 4.33).
120. As Mrs Townsend submitted, and as I have already said, those potential impacts were expected to be controlled by the design of the development itself, rather than by conditions. The City Council did not have to rely on uncertain future mitigation measures. And it did not start from the premise that although there might be significant impacts it might be possible to reduce those impacts to insignificance by imposing conditions outside the ambit of normal planning controls.
121. The approach anticipated in the 2012 screening opinions was adopted in the design of the proposed extension to the sports centre. This is clear from the officers' report on the extension proposal. The report bore out the analysis in the 2012 screening opinions.
122. I do not accept, therefore, that in screening the development the City Council went against the principles stated by Dyson L.J. in Jones and by Pill L.J. in Loader. It was satisfied that the potential for noise and light pollution was predictable and could be tackled in the design of the proposal submitted for planning permission. It did not go beyond envisaging "the operation of standard conditions and a reasonably managed development", which was held to be legitimate by Sullivan J. in Lebus (paragraph 45).
123. I therefore see nothing in this ground.

Issue (6): the lawfulness of the August 2011 planning permission

Submissions

124. Mr Upton submitted:

(1) The August 2011 planning permission was and remains unlawful because, before granting it, the City Council failed to undertake a lawful screening process for the relevant project.

(2) The planning permission could not be rescued by the subsequent screening process for the same development undertaken in October 2011, even if that process had itself been impeccable – which it was not. The City Council was by then, as Mr Upton put it, "functus officio". As the National Planning Casework Unit had said in November 2011, the Secretary of State had no power to screen the project after permission for it had been granted. The City Council did not either.

125. Mrs Townsend submitted:

(1) There is nothing in the EIA Directive or in the regulations to prevent a local planning authority screening a development only after planning permission had been granted for it.

(2) If that was done and the result was negative, the planning permission itself would be sound in law. This would be so even if the decision to grant permission had been taken after a prior screening process that was defective but whose outcome had been that the development was not EIA development.

Discussion

126. Mrs Townsend conceded that there was what she described as a "technical flaw" in paragraph 4.4 of the screening opinion of June 2011. The flaw was the City Council's failure to adopt the approach indicated by Collins J. in Baker, which has now been provided for in the 2011 regulations – in paragraph 13 of Schedule 2. It was an error of law to screen the development, as the City Council did in June 2011, by considering merely whether the particular changes proposed, rather than the whole of the development once it had been changed, would be likely to have significant effects on the environment. But in the circumstances, said Mrs Townsend, this did not matter. The October 2011 screening process had come to the same conclusion as the screening opinion adopted in June 2011, and had done so in a legally correct way. The conclusion was that the project was not EIA development. The second screening process had shown that the outcome of the first was right. No prejudice had arisen, either to the claimant or anyone else. A screening process does not involve consultation or public participation. Under the EIA Directive and the regulations the public is only involved once the process of EIA itself has been begun.
127. Mr Upton said the mistake the City Council had made, and admitted, in the June 2011 screening opinion was much more serious than Mrs Townsend would acknowledge. It was, he said, a jurisdictional error. It went to the City Council's jurisdiction, as local planning authority, to determine the application for planning permission. Once the screening process had gone wrong, the error, if left uncorrected while the application was before the City Council, was fatal to the permission itself.
128. As Mrs Townsend accepted, the idea that a planning permission granted after a substantially flawed screening process can be validated by a later screening opinion, in which the development is found not to require EIA, is novel. But she was reluctant to argue for "ex post facto" validation. Her argument, as I understood it, was that the effect of a negative screening opinion adopted after planning permission had been granted, if consistent with the outcome of an earlier, though legally defective screening process undertaken before the grant, would serve to confirm that the permission itself was valid. The regulations, she said, do not preclude what the City Council did in this case. Of course, if the October 2011 screening opinion had found that the development was EIA development the planning permission granted in August 2011 could not then have been saved. The City Council's committee would then have been shown to have made a basic mistake. It would have granted planning permission wrongly assuming that the proposal was not for EIA development. The requirements of the EIA Directive and the regulations would not have been complied with. There would have been no EIA. But that is not what happened. The reality is that EIA was not required. So the court cannot hold that the August 2011 permission had been granted on a false basis. Thus the concept seems to be that there was latent validity in the planning permission.
129. Mrs Townsend relied on the decision of the Court of Appeal in R. (on the application of Berky) v Newport City Council [2012] EWCA Civ 378. The facts there, however, were rather different. Carnwath L.J., as he then was, said he found the whole discussion "somewhat sterile" (see paragraph 22 of his judgment). The real issue was not whether the screening opinion itself was valid. It was whether a flawed screening opinion had led to failure to conduct an EIA and thus undermined the legality of the planning process. There was nothing in the evidence before the court to cast doubt on the authority's decision that the proposal was not for EIA development, and nothing to indicate that objectors had been prejudiced because the reasons originally given for that decision were as short as they were (paragraph 24). Moore-Bick L.J. agreed (paragraphs 45 and 46). Sir Richard Buxton also agreed (paragraph 55). He added that he would otherwise have had to consider "whether it was possible to escape from a quashing order". The proceedings, he said, were "in the nature of an actio popularis, to assert a public right that ought to be vindicated … by the sanction of a quashing order" (ibid.). But the best the objectors could do was to complain about the procedure, not the substance, of the screening process. Even if those complaints had been well made, "there would have been no policy reason for requiring the whole scheme to be unravelled" (ibid.).
130. The difficulty I see for Mrs Townsend's argument is that it seems alien to the fundamental purpose of the EIA Directive.
131. In Berkeley v Secretary of State for the Environment [2001] 2 AC 603 Lord Hoffmann said (at p.614A-B) that the "primary obligation" under the EIA Directive, under article 2(1), "is for a member state to require an EIA before consent is given in every case in which the project is likely to have significant effects on the environment". Lord Hoffmann went on to say (at p.617D-F) that "[the] point about the environmental statement contemplated by the [EIA] Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language".
132. The provisions for screening in the 2011 regulations plainly contemplate that if screening of a development proposal is undertaken, this will be integral to the process that culminates in a decision on the application for planning permission. The EIA regime can only work when planning decision-makers enable themselves to make their decisions on proposals for development either in the light of a comprehensive and publicly available assessment, prepared under the regulations, or having established that such an assessment is not required. Screening is the means by which the decision-maker judges whether the project is EIA development. If it is, an environmental statement has to be prepared, and this must be considered before the development consent decision is taken. A timely and legally sound screening decision is essential to this process.
133. This understanding of the role and significance of screening within the statutory framework for EIA seems consistent with the tenor of relevant European and domestic jurisprudence. For example, in R. (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157, the majority of the Court of Appeal (Moore-Bick and Jackson L.JJ.) held that the screening process was flawed by the local planning authority's failure to give sufficient reasons for its decision not to require EIA – contrary to the principle emphasized by the European Court of Justice in R. (Mellor) v Secretary of State for Communities and Local Government (Case C-75/08) [2010] Env LR 18. The interested party, whose development it was, had argued that the court should not quash the grant of planning permission but instead simply direct a fresh screening process. Moore-Bick L.J. (in paragraph 31 of his judgment), expressed some sympathy with the interested party's position. But he did not think the course it had suggested was possible. He said this (ibid.):

"The difficulty, as it seems to me, is that the adoption of a screening opinion, if one is required, is part of a process that leads eventually to the grant or refusal of planning permission. If any step in that process is legally flawed, the process as a whole is flawed and the grant of permission must be quashed. Accordingly, I think that there is no alternative but to grant the claimants the relief they seek."

134. In my view Mrs Townsend's submissions on this issue are incompatible with the underlying aims of the EIA Directive. I would prefer to hold, consistently I think with the Court of Appeal's reasoning in Bateman, that if a negative screening opinion is adopted before planning permission is granted and that screening opinion turns out to be legally flawed, the consequent flaw in "the process as a whole" cannot be put right by a second process carried out later. Whether in those circumstances the permission has to be quashed will be for the court, in its discretion, to decide.
135. My conclusion, therefore, is that – because of the admitted error in the June 2011 screening opinion – the August 2011 planning permission was not lawfully granted, and that it did not become lawful through the October 2011 screening process.

Discretion

Submissions

136. Mr Upton submitted:

(1) In the light of the strong observations on discretion in the House of Lords' decision in Berkeley, this was not the kind of case in which the court should decline to quash a planning permission that had been unlawfully granted.

(2) To sanction the unlawfulness of what the City Council did when it granted the August 2011 planning permission, which was a significant breach of the statutory code for EIA, would not be right. A remedy should be granted in the normal way, and notwithstanding the planning permission granted for the same development in December 2012 – if that were held to be lawful.

137. Mrs Townsend submitted:

(1) There would be no point in striking down the permission at this stage. It was perfectly clear that the result of any reconsideration of the March 2011 application would be the same now as it was in August 2011. The Secretary of State had not chosen to intervene. He had not made a screening direction under regulation 4(8). The officers' view had not changed. Substantially the same project had been permitted again, lawfully and after an unimpeachable screening process, in December 2012. The project is not EIA development.

(2) Therefore, if the August 2011 permission were held to be unlawful, the court should exercise its discretion to withhold relief.

Discussion

138. The only question here is whether I should exercise my discretion not to quash the August 2011 planning permission.
139. Seeking to persuade me that I should, Mrs Townsend urged me to see the circumstances of this case as quite unlike those of Berkeley. In Berkeley the issue went to the heart of the process embodied in the EIA Directive. The project was EIA development, but no environmental statement had been provided before the decision to approve it was made. Lord Bingham referred (at p.608C-H) to the narrowness of the court's discretion to withhold relief "in the Community context, unless [the] violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed". Even if an EIA would not have led to the refusal of the planning application – as had been conceded – this, said Lord Hoffmann (at p.613G-H), would not be "a sufficient reason for deciding, as a matter of discretion, not to quash the decision". Lord Hoffmann went on to say (at p.616D-G) that he doubted whether, "consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the [EIA] Directive".
140. In R. (Edwards) v Environment Agency [2008] UKHL 22 (in paragraphs 63 to 65) Lord Hoffmann agreed with what Carnwath L.J., as he then was, had said in Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env. L.R. 509 (at p.526) – that the speeches in Berkeley need to be read bearing in mind both the nature of the flaw and the ground for the exercise of the discretion. In Berkeley the flaw was the complete absence of EIA for EIA development. The only reason urged for the court to refrain from quashing the planning permission was that the result was bound to be the same if the application went back. In Edwards there was no breach of European law. The only breach of domestic law was the failure to disclose information about the predicted effects of certain emissions. But the actual emissions from the plant had since been measured and taken into account. To quash the decision would have been pointless.
141. In Walton v Scottish Ministers [2012] UKSC 44 the Supreme Court considered the exercise of judicial discretion in the context of a failure to comply with the statutory requirements for strategic environmental assessment for a road scheme in Aberdeen. Lord Carnwath saw a contrast with the circumstances in Berkeley, both in the statutory context and on the facts (paragraph 131 of his judgment). And he went on to say this (in paragraph 139):

"Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source."

Lord Hope expressed essentially the same conclusion (in paragraph 156 of his judgment).

142. The court does have the discretion to withhold relief where unlawfulness has infected an EIA screening process and hence the grant of planning permission itself. It is, however, a narrow discretion.
143. In this case the claims for judicial review have concentrated entirely on the legality of screening for EIA. There has been no challenge to any other aspect of the City Council's decision-making on the applications for planning permission. The City Council has successfully resisted the second claim for judicial review. A legally impeccable screening process was completed before the December 2012 planning permissions were granted. Those permissions will therefore survive. One of them was a fresh approval for the development permitted in August 2011. In this sense, because the second claim for judicial review has not succeeded, the first has become academic.
144. But the decisive point in my view is that the 2011 project was not EIA development. The August 2011 permission was issued after a defective screening process, but was followed in October 2011 by a process whose outcome was the same. The conclusion was that EIA was not required, which is what the City Council had found before granting planning permission. And that conclusion was correct. The August 2011 permission was not rendered lawful by the subsequent screening process. But neither the claimant himself nor anyone else was deprived of an opportunity they ought to have had to participate in an EIA process – in contrast to what happened in Berkeley. No one has suffered any substantial injustice. The claimant will suffer no real prejudice at this stage if the August 2011 planning permission is not quashed. Against that, it is true, the City Council would suffer no substantial prejudice if relief were granted. But is there any point in granting what would now be, both for the claimant and in the public interest, a futile remedy? I think not.
145. In these circumstances I am able to exercise my discretion not to quash the planning permission granted by the City Council on 8 August 2011.

Conclusion

146. For the reasons I have given, the claimant's challenges to all three of the planning permissions fail. In the first claim, the claimant's argument has prevailed only on the admitted error in the screening opinion of June 2011, but the planning permission granted on 8 August 2011 will not be quashed. In the second case I grant permission to apply for judicial review but the claim itself will be dismissed.