The effect of a post-grant designation as Environmental development

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2 min read

A recent case has considered two interesting issues – whether consent granted without consideration of an environmental statement was unlawful if the Secretary of State issued a positive screening direction after the grant of the permission; and whether a challenge could succeed despite being made approximately eleven weeks after grant of permission.

A recent case has considered two interesting issues – whether consent granted without consideration of an environmental statement was unlawful if the Secretary of State issued a positive screening direction after the grant of the permission; and whether a challenge could succeed despite being made approximately eleven weeks after grant of permission.

This case related to a planning application at a Quarry for buildings and facilities to support the reopening of the Quarry. A third party objected to the application on a number of grounds including that the development had to be screened for Environmental Impact Assessment (EIA) purposes. The Local Planning Authority (LPA) then adopted a negative screening opinion and shortly after this, the third party requested a screening direction from the Secretary of State. However, planning permission was granted by the LPA before the Secretary of State’s screening direction was published.

Approximately two months after the grant of permission, the Secretary of State issued a positive screening direction and, as a result, the third party challenged the decision to grant permission on the basis that the LPA had failed to comply with the requirement in the EIA Regulations not to grant permission for EIA development without consideration of the environmental information.

The Court held that the Secretary of State’s screening direction rendered the permission unlawful even though it was issued after the permission.

Mr Justice Dove said “if the planning authority chooses to grant consent and prior to the resolution of a direction requested of the Secretary of State then they run the risk that if that direction is positive they will have granted a planning consent which is infected with illegality.” He went on to add that if necessary to do so, he would have been minded to conclude that no reasonable planning authority would proceed to grant permission where there was an outstanding request to the Secretary of State to make a determination on a screening direction.

Regarding the issue of delay, the Court accepted that only when the Secretary of State’s decision was known did the claimant have any prospect of making out its key ground of challenge and, therefore, it was appropriate to extend time as there were clear and sensible reasons for the delay, the delay was not disproportionate and no prejudice was suffered by the LPA or applicant.

R (on application of Roskilly) v Cornwall County Council

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