Kenyon v The Secretary of State for Housing Communities & Local Government

Factual and Procedural Background

This appeal concerns a development site on the outskirts of The City, referred to as Site A. On 16 December 2016, the first respondent issued a screening direction concluding that the proposed residential development of Site A was not Environmental Impact Assessment (EIA) development under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 Regulations"), and thus no environmental statement was required. The appellant sought judicial review of that screening direction, which was refused by Judge Lang on 18 December 2018. The appellant was granted permission to appeal by Lindblom LJ.

Site A had a history as a former brickworks quarry, later used as a recreation ground and sports complex. Planning permission for residential development had been granted and quashed on two occasions before the current proceedings. The appellant requested an EIA screening direction from the first respondent in September 2016, leading to the contested screening opinion and direction concluding no EIA was necessary.

The appellant initiated judicial review proceedings on 24 January 2017, challenging the screening direction on three grounds: failure to consider cumulative effects, unlawful reliance on conditions to mitigate environmental harm, and failure to consider other environmental consequences. Permission for judicial review was granted only on the first ground limited to air quality impacts. The appellant later abandoned the third ground and was refused permission on the second ground. The hearing and appeal thus focused primarily on the cumulative air quality effects of six development sites including Site A.

Legal Issues Presented

1. Whether the first respondent’s screening direction that the proposed development was not likely to have significant environmental effects was supported by sufficient evidence.
2. Whether the precautionary principle required a different approach to decision-making given uncertainties about air pollution impacts.
3. Whether the first respondent failed to properly consider cumulative environmental effects of the proposed development alongside other local sites.
4. Whether the screening direction unlawfully treated the urban location of Site A as a basis for applying a lower threshold for environmental impact assessment.
5. Whether the characterization of Site A as an existing developed site rather than a greenfield site was erroneous and affected the screening decision.

Arguments of the Parties

Appellant's Arguments

• There was no sufficient evidential basis for the first respondent’s conclusion that the development would have no likely significant environmental effects, particularly given Site A’s proximity to an Air Quality Management Area (AQMA).
• The precautionary principle required a more cautious approach due to inevitable uncertainties about air pollution impacts from increased traffic.
• The first respondent failed to properly assess cumulative environmental effects from Site A in combination with five other local development sites.
• The screening direction unlawfully relied on the fact that Site A was in an urban area to justify not requiring an EIA.
• The first respondent and the judge erred in characterizing Site A as an existing developed site rather than a greenfield site, which impacted the environmental assessment.

Respondent's Arguments

• The screening direction was based on a proper assessment of relevant factors under Schedule 3 of the 2011 Regulations and had a sufficient evidential basis.
• The AQMA and potential traffic impacts were expressly considered and found not likely to cause significant environmental effects.
• The precautionary principle did not apply as there was no reasonable doubt in the mind of the decision-maker regarding the absence of significant effects.
• Cumulative effects of Site A and other nearby sites were properly considered in the screening opinion and direction.
• Site A was correctly characterized as previously developed land (an existing developed site) given its history as a quarry, landfill, and recreation ground.
• The urban location of Site A was appropriately considered as part of the environmental context, not as a basis for applying a lower legal standard.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the regulatory framework under the 2011 Regulations, emphasizing the limited scope of screening opinions as preliminary assessments to determine if a full EIA is necessary. It noted that Schedule 2 developments require consideration of selection criteria in Schedule 3, focusing on characteristics of development, location, and potential impact.

The court reviewed the factual background, including the history and scale of Site A, the prior planning permissions, and the screening opinion and direction issued by the first and second respondents. It observed that the screening direction addressed all relevant criteria, including cumulative effects and proximity to the AQMA, concluding no likely significant environmental effects.

On appeal, the court scrutinized the appellant’s grounds, particularly the evidential basis for the screening decision and the application of the precautionary principle. It found that the judge had properly assessed the evidence and that the screening direction was supported by a rational evidential basis. The court rejected the appellant’s argument that proximity to the AQMA mandated an automatic presumption of significant environmental effect, emphasizing that significance depends on the facts of each case.

The court further held that the precautionary principle only applies where there is reasonable doubt in the decision-maker’s mind, which was absent here. It also concluded that cumulative effects had been properly considered through reference to other local developments in the screening opinion and analysis.

Regarding the characterization of Site A as an existing developed site rather than greenfield land, the court agreed with the respondents, finding that the site’s history justified this classification and that it did not affect the screening decision’s outcome.

Finally, the court addressed the appellant’s contention that the urban location of Site A led to an unlawful lowering of the assessment threshold. It found this to be a misreading of the screening direction, which correctly considered the urban context as part of the environmental baseline rather than as a reason to apply a different legal test.

Throughout, the court emphasized the importance of reading decisions fairly and in context, avoiding excessive legalism or nit-picking of language, and respecting the planning judgment exercised by the decision-makers.

Holding and Implications

The court’s final decision was to DISMISS THE APPEAL. It held that the first respondent’s screening direction was lawful, rational, and supported by sufficient evidence. The judge’s refusal of judicial review was correct, and no error of law was demonstrated on appeal.

The direct effect is that the proposed development of Site A does not require an Environmental Impact Assessment under the 2011 Regulations. The decision does not establish new precedent but reaffirms established principles concerning the limited scope of screening opinions, the application of the precautionary principle, and the approach to cumulative environmental effects in planning law.