Catt, R (on the application of) v Brighton & Hove City Council

Factual and Procedural Background

These two claims for judicial review concern the screening of development proposals under environmental impact assessment ("EIA") regulations related to three planning permissions granted by the Defendant, the City Council, for development on the site of the Withdean Stadium at Tongdean Lane in The City. The first permission was granted on 8 August 2011, and the second and third on 21 December 2012. The Appellant, a resident of a nearby street, objected to these proposals, alleging deficiencies in the screening process that rendered the permissions unlawful. The first claim was permitted to proceed, while the second was ordered to be heard together with the first.

The stadium site, owned by the City Council, is approximately six hectares in a residential area with nearby housing and a Local Nature Reserve. Historically, the site has been used for athletics and football, including as a temporary home for a football club until 2011. The site has a complex planning history, including previous permissions that were challenged and some quashed, others upheld.

The City Council adopted various screening opinions in 2005, 2007, 2011, and 2012, consistently concluding that the development proposals did not require EIA. The Appellant challenged these screening opinions and the resulting planning permissions, contending that the City Council failed to properly consider the project as a whole, unlawfully split the project into parts, and unreasonably concluded that significant environmental effects were unlikely.

The City Council’s "Masterplan" for the site, developed between 2011 and 2012, was a non-policy document outlining potential future developments, some of which were incorporated into the planning applications. The City Council granted planning permissions in August 2011 and December 2012 for developments including retention of existing facilities and extensions to the sports centre. Screening opinions accompanied these permissions, concluding no EIA was required.

Legal Issues Presented

1. Whether any of the three planning permissions is invalid due to failure to consider the scheme as a whole in screening;
2. Whether any permission is invalid because the City Council unlawfully split the project into discrete sub-projects;
3. Whether any permission is invalid because the City Council unreasonably concluded no significant environmental effects were likely;
4. Whether the December 2012 permissions are invalid for wrongly relying on guidance in Circular 02/99;
5. Whether the December 2012 permissions are invalid due to unlawful reliance on mitigation measures at the screening stage;
6. Whether the August 2011 permission was lawfully granted or became lawful through the subsequent screening process in October 2011.

Arguments of the Parties

Appellant's Arguments

• The City Council failed to screen the entire project as required, instead considering parts in isolation.
• The project to be screened included the Withdean Stadium Complex as extended by the current proposals and any reasonably foreseeable development, including elements of the Masterplan.
• The June 2011 screening opinion was unlawful as it compared proposed development only against the restored site rather than the whole project.
• The October 2011 and 2012 screening opinions failed to consider the full range of potential effects and future uses contemplated in the Masterplan.
• The City Council engaged in "project splitting" or "salami-slicing," ignoring cumulative impacts and past intensive uses.
• The City Council exceeded its discretion in concluding no significant environmental effects were likely, ignoring noise, light, traffic, and cumulative impacts.
• The City Council wrongly relied on outdated guidance in Circular 02/99, equating local effects with insignificant effects.
• The City Council unlawfully relied on mitigation measures deferred to the design stage to reduce impacts.
• The August 2011 planning permission was unlawful as it was granted following a flawed screening process, and could not be validated by a subsequent screening opinion.
• The court should quash the August 2011 permission and grant relief despite the later permissions.

Defendant's Arguments

• The City Council conceded the June 2011 screening opinion was flawed but corrected this in the October 2011 and 2012 opinions, which properly screened the whole project.
• The project was correctly identified in each screening process, excluding past uses no longer relevant and speculative future developments lacking certainty.
• The City Council did not engage in project splitting; it considered cumulative impacts and the project as a whole in the later screening opinions.
• The City Council exercised reasonable judgment in concluding no significant effects were likely, applying the selection criteria in Schedule 3 appropriately.
• The reliance on Circular 02/99 was appropriate and not misleading; local effects can be relevant to significance assessments.
• The City Council did not improperly rely on mitigation measures; the design itself incorporated controls to prevent significant impacts.
• There is no legal impediment to screening after granting permission; a subsequent lawful screening opinion validates the permission.
• The August 2011 permission remains valid as the later screening opinion confirmed no EIA was required, and no prejudice arose to the Appellant.
• The court should withhold relief and uphold the planning permissions granted in December 2012.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the adequacy of the City Council's identification and screening of the "project." It recognized that the June 2011 screening opinion was flawed for considering only the proposed changes against the restored site rather than the entire development as extended. This approach was inconsistent with the EIA Directive and the decision in Baker, and was rightly conceded by the City Council.

However, the court found that the subsequent screening opinions in October 2011 and 2012 properly identified and screened the project as a whole, including the cumulative effects of the two 2012 applications and the development as extended. The court rejected the Appellant's claim of unlawful project splitting ("salami-slicing"), holding that the City Council did not subdivide the project improperly but considered it comprehensively.

Regarding the City Council’s judgment that no significant environmental effects were likely, the court acknowledged that such judgments are planning decisions subject to Wednesbury review. The court found no unreasonableness or failure to consider relevant factors. The City Council reasonably considered potential impacts such as noise, light, traffic, and visual effects, concluding these would not be significant, a conclusion supported by evidence and the application of the selection criteria in Schedule 3.

The court also rejected the Appellant’s argument that reliance on Circular 02/99 was unlawful. It held that the guidance was not misleading, that local effects can be relevant to significance, and that the City Council did not misapply or slavishly follow the circular without regard to the 2011 regulations.

With respect to mitigation measures, the court found that the City Council did not unlawfully rely on uncertain future mitigation to avoid EIA. The measures were incorporated into the design stage and were not conditions imposed after planning permission. This approach was consistent with established principles.

On the lawfulness of the August 2011 planning permission, the court held that the permission was not lawfully granted due to the admitted error in the June 2011 screening opinion. It rejected the Defendant's argument that a subsequent screening opinion could validate the earlier permission. The court emphasized the integral role of screening in the planning process and the need for a lawful screening opinion before consent is given, consistent with the EIA Directive and relevant case law.

However, exercising its discretion, the court declined to quash the August 2011 permission. This was because the subsequent lawful screening and permissions in December 2012 confirmed that the project was not EIA development, and no prejudice or injustice would result from withholding relief. The court noted the narrowness of discretion to withhold relief in EIA cases but found it appropriate here given the circumstances.

Ultimately, the court dismissed the Appellant's challenges to the December 2012 permissions and upheld those permissions as lawful.

Holding and Implications

The court's final decision is that the Appellant's challenges to all three planning permissions fail. While the court found a legal error in the June 2011 screening opinion affecting the August 2011 permission, it exercised discretion not to quash that permission. The two planning permissions granted in December 2012 were upheld as lawful following proper screening.

The three planning permissions are upheld, and the claims for judicial review are dismissed.

The direct effect is that the City Council's planning permissions for development at the Withdean Stadium site remain valid and enforceable. No new legal precedent altering EIA screening obligations was established beyond the application of existing principles. The decision reinforces the importance of correctly identifying the project and exercising reasonable judgment in screening, while recognizing the court's limited role in substituting its own planning judgments.