Petition by Caz Rae for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner sought judicial review of a decision by Glasgow City Council, acting as the local planning authority for the City of Glasgow, that an Environmental Impact Assessment ("EIA") was not required for the proposed demolition of four residential 26-storey blocks comprising approximately 600 homes at the Wyndford Estate. The demolition was planned over two years. The Petitioner and her children reside in the vicinity of the Estate.

Following a request for a screening opinion in February 2023, the Council adopted a screening opinion in March 2023 determining that an EIA was not required. This opinion was challenged and reduced by consent in September 2023. Subsequently, a further screening opinion was adopted by the Council in October 2023, again concluding that an EIA was not required. The present judicial review proceedings challenge the October 2023 screening opinion.

Legal Issues Presented

1. Whether the Council's October 2023 screening opinion was irrational or based on errors of law, including its interpretation and application of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 ("the 2017 Regulations").
2. Whether the Council failed to comply with regulation 7(1)(a)(i) of the 2017 Regulations by not properly considering relevant selection criteria.
3. Whether the Council breached its statutory duty under section 1(1) of the Nature Conservation (Scotland) Act 2004 to further the conservation of biodiversity.
4. Whether the Council applied the correct legal test in determining the likelihood of significant environmental effects, specifically whether it erred by requiring a "significant adverse effect" rather than a "significant effect".
5. Whether the Council had sufficient information before it to issue the screening opinion, considering the precautionary principle under EU environmental law.
6. The legal effect and scope of the prior approval process under Class 70 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 in relation to the demolition methodology and environmental impact assessment requirements.

Arguments of the Parties

Appellant's Arguments

• The Council's October 2023 screening opinion was irrational and legally flawed for relying on mitigation measures to conclude that significant effects on the environment were unlikely, contrary to established case law.
• The Council failed to consider several relevant selection criteria required by regulation 7(1)(a)(i) of the 2017 Regulations, including impacts on natural resources, biodiversity, risks to human health, absorption capacity of the natural environment, and the magnitude and spatial extent of impacts.
• The Council lacked sufficient information to properly assess the environmental impacts and mitigation measures, especially given outstanding site surveys, and thus should have required an EIA based on the precautionary principle.
• The Council breached its statutory duty under section 1(1) of the Nature Conservation (Scotland) Act 2004 by not adequately considering biodiversity conservation.
• The Council applied the wrong legal test by focusing on "significant adverse effects" rather than "significant effects," which is the correct statutory standard.
• The prior approval process under Class 70 did not substitute for an EIA or provide sufficient environmental information for screening.

Respondent's Arguments

• The Council reasonably exercised its planning judgment in concluding that an EIA was not required, and the screening opinion complied with the 2017 Regulations.
• The Council properly considered the relevant selection criteria in Schedule 3 to the 2017 Regulations, including natural resources, biodiversity, human health risks, and environmental absorption capacity.
• The mitigation measures proposed were straightforward, industry best practice, modest in scope, and plainly achievable, and could be taken into account in the screening opinion.
• The Council had sufficient information to make an informed judgment despite some outstanding details, in line with the provisional nature of screening opinions and relevant case law.
• The prior approval process under Class 70 properly focused on the demolition methodology and did not overlap with environmental impact considerations regulated by the 2017 Regulations.
• The use of "significant adverse effect" in the screening checklist, while incorrect in terminology, did not materially affect the outcome or render the decision unlawful, and the court should exercise discretion not to reduce the opinion on this basis.
• The petitioner's complaints amounted to disagreements with planning judgment rather than legal errors.

Interested Party's Arguments

• Adopted the submissions of the Respondent.
• Emphasized that the assessment of whether significant effects are likely is a matter of planning judgment for the decision-maker and subject to limited judicial review on grounds of irrationality.
• Noted that the screening opinion process is preliminary and does not require detailed assessment or exhaustive information.
• Accepted that mitigation measures may be taken into account if modest, plainly achievable, or uncontroversial, and argued that the Council's approach met these criteria.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Champion) v North Norfolk DC [2015] UKSC 52	Application of the precautionary principle in EIA screening; material doubt resolved in favor of requiring EIA.	Supported the principle that uncertainty in environmental impact requires an EIA; the Council failed to apply this properly.
R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869	Decision-maker must consider precautionary principle and degree of uncertainty in environmental impact.	Reinforced that insufficient information may require an EIA; relevant to assessing sufficiency of Council's information.
R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157	Definition of "likely" as "something more than a bare possibility" in EIA context.	Clarified threshold for significant effects; Court applied this in assessing Council's conclusions.
British Telecommunications Plc v Gloucester City Council [2001] EWHC Admin 1001	Distinction between "significant effects" and "significant adverse effects" in EIA Regulations.	Court found Council erred by applying "significant adverse effect" test instead of "significant effect".
R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin)	Local planning authority's discretion in screening opinions; judicial intervention only for errors of law.	Confirmed limited scope of review; relevant to Council's planning judgment on mitigation measures.
R (Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin)	It is an error of law to refuse EIA on basis that mitigation measures will reduce significant effects to insignificance.	Supported the principle that mitigation must be detailed in EIA; Council erred by assuming mitigation would eliminate effects without EIA.
Gillespie v First Secretary of State [2003] EWCA Civ 400	Mitigation measures can be considered if modest, plainly achievable, and uncontroversial.	Court applied this to assess whether Council's reliance on mitigation was lawful; found Council's mitigation not plainly established.
R (Jones) v Mansfield DC [2003] EWCA Civ 1408	Conditions and undertakings cannot substitute for the EIA process; sufficiency of information required for screening decision.	Supported that Council could not rely solely on prior approval or conditions to avoid EIA; relevant to Council's approach.
R (on the application of Cairns) v Hertfordshire County Council [2018] EWHC 2050 (Admin)	Equitable remedy of reduction of screening opinion; importance of public participation and procedural compliance.	Applied in considering whether to reduce the screening opinion; court found significant procedural defects in Council's opinion.
R (Kenyon) v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 302	Judicial review of screening opinions is limited to irrationality; planning judgment predominates.	Court applied this standard to assess Council's exercise of discretion and sufficiency of information.
R (Finch) v Surrey County Council [2024] UKSC 20	Purpose of EIA Directive; procedural nature of EIA legislation; discretion in screening decisions.	Guided interpretation of the 2017 Regulations and the court’s discretion in remedying errors in screening opinions.
Berkeley v Secretary of State for the Environment [2001] 2 AC 603	Requirement for systematic and comprehensive assessment of environmental effects before consent.	Supported the principle that failure to carry out EIA deprives public of right to be heard; relevant to procedural fairness.
Walton v Scottish Ministers [2013] PTSR 51	Court’s discretion to refuse relief despite breach of EIA Regulations if no substantial prejudice.	Applied in assessing whether procedural defects warranted reduction of the screening opinion.
Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) [2014] PTSR 311	Interpretation of EIA Directive in EU law; importance of public participation and procedural guarantees.	Considered in conjunction with Walton and Champion in assessing remedy and procedural compliance.
R (Morge) v Hampshire County Council [2010] EWCA Civ 608	Assessment of likelihood and significance of environmental effects involves planning judgment and value judgment.	Supported that different reasonable conclusions are possible; court should not interfere absent irrationality.

Court's Reasoning and Analysis

The court undertook a detailed analysis of the applicable statutory framework, relevant case law, and the facts of the case. It acknowledged the procedural and preliminary nature of screening opinions under the 2017 Regulations and the limited scope for judicial intervention, primarily on grounds of irrationality or legal error.

The court identified that the Council applied the incorrect legal test by focusing on whether the development was likely to have a "significant adverse effect" on the environment rather than the correct test of "significant effects". This was a pervasive error of law affecting the screening opinion.

However, the court found that the Council had properly considered the relevant selection criteria in Schedule 3 to the 2017 Regulations and had identified and assessed potential environmental impacts, including mitigation measures. The mitigation measures, while complex, were considered by the Council to be industry best practice and plainly achievable. The court accepted that some mitigation measures could be taken into account at the screening stage, provided they were modest or clearly effective.

The court rejected the petitioner's contention that the Council lacked sufficient information to make an informed judgment, noting the provisional nature of screening opinions and that not all uncertainties must be resolved before issuing a negative screening opinion. It also found that the Council complied with its statutory duty under the Nature Conservation (Scotland) Act 2004 by considering biodiversity within the scope of the 2017 Regulations.

Regarding the prior approval process under Class 70 of the General Permitted Development Order, the court clarified that this process relates solely to the approval of demolition methodology and does not substitute for the environmental impact assessment required under the 2017 Regulations.

Although the Council applied the wrong legal test, the court exercised its discretion not to reduce the screening opinion on this ground, concluding that the error did not affect the substantive outcome and that no member of the public was deprived of the procedural guarantees intended by the EIA Directive and the 2017 Regulations.

Overall, the court found that the petitioner's challenges, except for the legal error in the test applied, amounted to disagreements with the Council's planning judgment rather than errors warranting judicial intervention.

Holding and Implications

The court granted a declarator that the Council's October 2023 screening opinion was predicated on an error of law due to the application of the incorrect test ("significant adverse effect" rather than "significant effect").

Quoad ultra, the court rejected the remaining pleas and refused the other prayers of the petition.

The practical effect is that the Council's decision was formally recognized as legally flawed in form, but the court declined to quash or reduce the screening opinion, effectively allowing it to stand. No new precedent was established, and the decision underscores the limited scope for judicial review of planning authorities' screening opinions, emphasizing the primacy of planning judgment and the procedural nature of the EIA screening process.