Challenges to EIA screening directions could undergo judicial review

Out-Law News | 24 Oct 2012 | 4:41 pm | 1 min. read

The Court of Appeal could be asked to carry out a judicial review of a Secretary of State decision on a screening direction for an environmental impact assessment (EIA) and to apply a lower threshold of reasonableness than 'Wednesbury' unreasonableness in its assessment. 

A High Court judge, hearing the judicial review application alone, has given permission for the application to be heard again in a full court of three judges.The High Court rejected a previous application for judicial review on the same matter in May this year.

Developer Persimmon Homes Anglia Limited applied for planning permission for a 170-home scheme in Suffolk in 2010. Local planning authority Babergh District Council, which had first decided that the proposed development did not need an EIA, concluded that the proposals were likely to have a significant impact on the environment and that a EIA was therefore necessary.

Persimmon requested a screening opinion from the Secretary of State (SoS). The SoS decided that the development was not an EIA development on grounds that "the impact of the development would not be of sufficient magnitude to be likely to have a significant effect on the environment."

Local resident Michael Evans claims that the development will spoil views from nearby Abbas Hall. He brought a claim for judicial review of the SoS's decision. He recognised that, in order for a challenge to the decision to succeed, it would to be subjected to a lower threshold of reasonableness than that set by Wednesbury unreasonableness. Wednesbury unreasonableness is the standard of unreasonableness used when assessing judicial reviews applications. It provides that a decision is unreasonable if it is so unreasonable that no reasonable person could have made it.  

The definition of EIA developments is set out in an EU Directive as a "development likely to have significant effects on the environment by virtue of facts as nature, size or location". Evans said that Wednesbury unreasonableness sets too high a threshold when the decision under review is whether or not the EIA Directive applies. He said that the environmental rights of the citizen would be stifled if the application of the Wednesbury principle is allowed to stand.

The High Court judge adjourned the application to be heard again in the High Court by three judges and if permission is given, the appeal will proceed to the Court of Appeal.