'Wednesbury' unreasonableness correct test for screening direction challenges, says Court of Appeal

Out-Law News | 25 Feb 2013 | 5:15 pm | 1 min. read

When deciding whether an environmental impact assessment (EIA) screening direction by the Secretary of State (SoS) was lawful, the appropriate test to apply is the Wednesbury unreasonableness test, the Court of Appeal has ruled.

The Court rejected a claim that the standard of reasonableness to apply should be higher than the Wednesbury standard and that the SoS's decision should be subject to more intensive scrutiny.

The claim was brought by Suffolk resident Michael Evans, who claimed that a 170-home scheme by developer Persimmon Homes Anglia Limited would spoil views from nearby Abbas Hall.

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 an EIA was therefore necessary.

Persimmon subsequently requested a screening opinion from the 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."

Evans claimed that the approach by the SoS was not "precautionary and purposive" and that his decision should be scrutinised by using another test and notthe Wednesbury unreasonableness test.

However, Lord Justice Beatson said it was "unarguable" that the SoS's approach had failed to embody a precautionary approach and that the approach taken was a "more precautionary approach than is required by the 1999 EIA Regulations".

He said that the SoS had made the decision after considering the views obtained from a Local Plan inquiry, views of English Heritage and from objectors and Persimmon.

Lord Justice Beatson noted that the claim by Evans came "very close to suggesting that once there are differing views on a question, there must be a full EIA". He said that to require the EIA process where there are differing views would "largely" make the role of the SoS redundant.

"Accepting that submission would devalue the entire EIA concept, which involves a formal and substantial procedure often involving considerable time and resources," he said.

Lord Justice Beatson noted that Evans referred to the 2010 Aarhus Convention Compliance Committee report, which suggested that the appropriate standard to apply might be a proportionality test. However, he said that the Committee had reached no conclusive view that the Wednesbury approach is impermissible.

Lord Justice Beatson said that the "submissions are largely based on the position of the Aarhus Convention Compliance Committee. But that body has made no decision and has only expressed concerns".

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