Appeal against rejected judicial review on proposed housing development dismissed
Published: 02 Apr 2020

A local resident appealed against a decision, that a proposed housing development on a brownfield site was not an Environmental Impact Assessment (EIA) development.

The appeal Site A, prior to 1970, had been used as a brickworks quarry, but was later infilled and used as a recreation ground. A small sports stadium was also built. In 2008, a developer applied for planning permission for 150 homes on Site A. The local authority granted permission, but was subsequently quashed by consent. In 2016 the appellant, who was concerned about air pollution levels, requested an EIA screening direction.

The first respondent Secretary of State directed that the proposed development was not an EIA development within the meaning of the Town and Country Planning (Environmental Impact Assessment) Regulations SI 2011/1824, because it was not likely to have significant effects on the environment. It concluded that an environmental statement to assess the environmental effects of the development was not required. That direction reflected an earlier screening opinion issued by the second respondent local authority. The appellant sought judicial review of the screening direction, but the judge rejected his challenge.

On considering this appeal, it was confirmed that the judge had been entitled to conclude that there was a proper evidential basis for concluding that there was no likely significant effect on the environment. There was nothing unusual about the proposed development and the screening direction had adopted the approach required by SI 2011/1824. Also the first and second respondents were well aware of the Air Quality Management Areas (AQMA), and aware that the increased traffic from the completed development of Site A would have an effect on the AQMA. They concluded it was not likely to have a significant effect on the environment.

Also, five other potential development sites in the area had been properly taken into account in the screening opinion. In addition, the consented housing developments on Sites B and D and the application for housing in respect of Site C were also considered by the first respondent in the screening analysis under the heading "cumulative impact". Accordingly, the first and second respondents had reached their conclusions taking into account all relevant considerations, including the nature, location and scale of the proposed development and other developments in the area. There was plain evidential basis for that conclusion.

In addition, nowhere in the screening direction was there any suggestion that the potential air pollution from completed development of Site A was treated differently because it would occur in an urban environment, as opposed to a rural location. The screening direction made it plain that the pre-existing urban environment was part of the context in which the development was going to take place, and was therefore a relevant factor when considering if the effect was likely to be significant. The judge had not erred in finding that the proposed development was not likely to have a significant effect on the environment, so that an EIA was not required.

"The conclusion that the development was not likely to have a significant effect on the environment has not been shown to be in any way irrational".

The appeal was dismissed.