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

Factual and Procedural Background

This appeal arises from a judgment dated 28 July 2011 in which the trial judge refused an application by the Appellant to quash a screening direction issued by the Secretary of State for Communities and Local Government. The Secretary of State had determined on 7 July 2009 that a proposed redevelopment by Company B did not constitute Environmental Impact Assessment (EIA) development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations"). The development was for 41 sheltered apartments for the elderly and associated facilities on a site formerly used as a bowls club in The City.

Planning permission was initially refused by the local Council in 2006. An appeal to the Secretary of State was allowed but subsequently quashed due to procedural failures under the 1999 Regulations. On remittal, the Secretary of State issued the screening direction now challenged. The Secretary of State’s decision was supported by reasons prepared by the Planning Inspectorate, concluding that the development was unlikely to have significant environmental effects considering its nature, size, and location. The Appellant’s standing was not disputed.

Legal Issues Presented

1. Whether the Secretary of State correctly interpreted and applied the test of "likely to have significant effects on the environment" under the 1999 Regulations and the EU Environmental Impact Assessment Directive.
2. Whether the precautionary principle requires a broader interpretation of "significant effects" at the screening stage, such that any real prospect of influencing development consent necessitates an EIA.
3. The extent of the discretion afforded to the Secretary of State and Planning Inspectorate in making screening decisions and the applicable standard of judicial review.

Arguments of the Parties

Appellant's Arguments

• The term "significant effects on the environment" must be given an autonomous, purposive meaning consistent with the Directive’s aim of high environmental protection and the precautionary principle.
• The screening decision should adopt a broad construction of "significant effects" due to limited information at the screening stage and uncertainties inherent in early assessment.
• Any real prospect that the environmental effects could influence the development consent decision requires an EIA, relying on the Commission’s Guidance and the judgment in Waddenzee (Case C-127/02).
• The Secretary of State misdirected himself by failing to apply this broader test and the precautionary principle appropriately.
• There is objective evidence of potentially unacceptably adverse environmental effects based on the local Council’s reasons for refusal.

Secretary of State's Arguments

• The correct test is whether the development is "likely to have significant effects on the environment," meaning a serious possibility or real risk, not merely any possible effect.
• The test involves the exercise of planning judgment, considering the nature, size, location, and potential impacts, as supported by domestic authorities such as R (Bateman) v South Cambridgeshire DC and R (Morge) v Hampshire County Council.
• The precautionary principle does not require an overly broad or rigid interpretation that would make EIA mandatory in nearly all cases with any environmental impact.
• The Commission Guidance and case law, including the ECJ decision in Commission v United Kingdom, recognize a degree of discretion and require evidence of a manifest error of assessment to overturn screening decisions.
• The screening decision in this case was supported by appropriate evidence, including a completed checklist and detailed reasons, and was made after full consideration of planning issues by the local authority and Inspectorate.
• The Appellant’s proposed test would devalue the EIA process by requiring it in many cases where it is not intended or appropriate.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified the central legal test as whether the project is "likely to have significant effects on the environment," a test informed by European and domestic authority and the Commission Guidance. The court noted that this involves a planning judgment focusing on the particular circumstances of the case, including the nature, size, location, and potential impacts of the development.

The court rejected the appellant’s broader interpretation that any real prospect of influencing the development consent decision requires an EIA, explaining that such an approach would extend the EIA procedure to nearly all planning applications with environmental objections, contrary to the Directive’s purpose and domestic guidance.

The court emphasized the discretion afforded to planning authorities and the Secretary of State in screening decisions, subject to judicial review on Wednesbury principles and intervention only for manifest error of assessment. The precautionary principle is relevant but does not mandate an overly expansive test.

Applying these principles, the court found the Secretary of State and Planning Inspectorate’s decision was supported by reasoned analysis, appropriate use of the screening checklist, and full consideration of the planning issues, including after the local authority’s detailed refusal. The development’s scale and location did not meet the thresholds indicating significant effects.

Holding and Implications

The court DISMISSED the appeal, affirming the decision of the Secretary of State that the proposed redevelopment was not EIA development under the 1999 Regulations.

The direct effect of this decision is to uphold the screening direction and allow the planning process for the development to proceed without the requirement for a full Environmental Impact Assessment. The court did not establish new precedent but reaffirmed the established legal framework governing screening decisions, emphasizing the role of planning judgment, the limited scope of judicial review, and the proper interpretation of "likely to have significant effects" consistent with both domestic and EU law.