Evans, R (on the application of) v Secretary of State for Communities and Local Government & Ors

Factual and Procedural Background

This opinion concerns an application by the Appellant for permission to appeal a refusal by HHJ Mackie QC to grant permission to apply for judicial review of a screening direction made by the Defendant Secretary of State under Regulation 6 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 EIA Regulations"). The screening direction, dated 21 October 2011, concluded that a proposed development by Company A was not likely to have significant effects on the environment and therefore was not an "EIA development" subject to additional procedural requirements.

The proposed development involved 170 dwellings and associated infrastructure on a site previously designated as a Special Landscape Area but later allocated for residential development. The Appellant, a local resident and chairman of a residents' association, challenged the Secretary of State's decision following a local planning authority's initial screening opinion that was later reversed to require an Environmental Impact Assessment (EIA).

Permission to apply for judicial review was refused first on the papers and then following a hearing before HHJ Mackie QC. The Appellant sought permission to appeal that refusal, which was adjourned for a full court hearing. A protective costs order was granted in favor of the Appellant.

Legal Issues Presented

1. Whether the Secretary of State erred in law by failing to adopt a "precautionary and purposive" approach in making the screening direction under the 1999 EIA Regulations.
2. Whether the appropriate standard of judicial review for the Secretary of State's screening decision is the Wednesbury unreasonableness test or a more intensive standard, potentially including proportionality, in light of the Aarhus Convention and EU law.
3. Whether the court should refer questions regarding the standard of review and interpretation of EU law to the Court of Justice of the European Union (CJEU).

Arguments of the Parties

Appellant's Arguments

• The Secretary of State failed to apply a precautionary and purposive approach in the screening decision, disregarding uncertainties and the need to err on the side of environmental protection.
• The deputy judge erred by applying the Wednesbury test rather than a more rigorous standard of review, which the Appellant argued was inadequate to safeguard environmental rights under the Aarhus Convention and the EIA Directive.
• The Appellant contended that earlier case law supporting the Wednesbury test pre-dated the Public Participation Directive and developments in CJEU jurisprudence, necessitating reconsideration of the standard of review.
• The Appellant urged that, if permission to appeal was refused, the court should refer relevant questions to the CJEU for authoritative guidance.

Defendant's Arguments

The opinion does not contain a detailed account of the Defendant's legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the Secretary of State's screening decision and the applicable legal framework, emphasizing the following points:

• The 1999 EIA Regulations implement the EIA Directive, requiring environmental statements for developments likely to have significant environmental effects, with Schedule 2 developments subject to a screening process.
• The Secretary of State's decision was supported by a thorough factual assessment, including site visits and consideration of expert and local authority views, concluding that the development would not have significant environmental effects.
• The court rejected the Appellant's submission that the Secretary of State failed to apply a precautionary approach, holding that assessing real risk rather than probability aligns with the precautionary principle and that the Secretary of State's approach was at least as cautious as required.
• The court acknowledged the difference of opinion between the local planning authority and the Secretary of State but confirmed that the statutory scheme contemplates such differences, and the Secretary of State is entitled to form an independent view.
• The court held that the adequacy of reasons in the Secretary of State's supplementary note was sufficient and that disagreements on planning judgment do not amount to errors of law.
• Regarding the standard of judicial review, the court reaffirmed that the Wednesbury unreasonableness test remains the appropriate standard for reviewing EIA screening decisions, as supported by recent domestic and EU jurisprudence, including the CJEU's "manifest error of assessment" standard.
• The court found no legal basis to adopt a more intensive standard of review such as proportionality, particularly as the decision involved a factual assessment rather than a discretionary balancing act.
• The Aarhus Convention and the Compliance Committee's concerns were noted but found not to have direct legal effect or to undermine the established standard of review.
• The court declined to refer questions to the CJEU, finding no sufficient doubt or conflicting jurisprudence warranting such a reference.

Holding and Implications

The court refused permission to appeal the decision of HHJ Mackie QC refusing permission to apply for judicial review.

The direct effect of this decision is to uphold the Secretary of State's screening direction that the proposed development is not an EIA development requiring an Environmental Impact Assessment. No new precedent was established, and the court confirmed the continued application of the Wednesbury standard of review to screening decisions under the 1999 EIA Regulations in the context of environmental impact assessments.