Planning judicial review against Canterbury City Council dismissed

The claimant applied for judicial review of the defendant (Canterbury City Council) Local Authority's grant of planning permission so there can be a mixed-use development on a site near her home. Another mixed-use development has been proposed for an adjacent site, under different ownership (which was being promoted by another developer).

The local authority had a screening opinion which found when applying the Town and Country Planning (Environmental Impact Assessment) Regulations SI 2017/571, that the development was an Environmental Impact Assessment (EIA) development and so required an environmental statement. 

The developer of that site then made an application for outline planning permission, accompanied by an environmental statement that assessed the environmental effects of the development, including cumulative and in-combination effects with other development - including the development that the claimant challenged. The local authority granted permission for the adjacent site and found that the development on the instant site was an EIA development.

The claimant's argument is that the local authority should have assessed the developments as a single project for the purposes of the Regulations. Subsequently, its failure to do so meant that the environmental statement submitted for the instant site was inadequate, mainly in its assessment of the cumulative effect of the two developments. 

The application was refused, as the question of what constituted the "project" itself, for the purposes of the Regulations, was a matter of judgement for the competent authority, that was subject to challenge on the grounds of Wednesbury irrationality or other public law error. 

Relevant factors could include:

• common ownership - where two sites are owned or promoted by the same person, which can lead to them being taken as a single project;
• simultaneous determinations - where two applications are both considered and determined by the same committee on the same day and are subject to reports which cross-refer to one another, which can lead to them being taken as a single project;
• functional interdependence - where one part of development could not function without the other, which can lead to them being taken as a single project;
• stand-alone projects - where a development was justified on its own merits and would be pursued independently of another development - this would indicate that it constituted a single individual project that was not an integral part of the more substantial scheme.

When those factors are applied, the sites were seen as separate developments - this, for a couple of reasons:

• the developer had no interest in the other site, and no connection to its owners or promoters;
• the two development schemes had been pursued separately from each other;
• there was no functional interdependence, as the sites were both substantial, and had their own access and drainage arrangements;
• they were stand-alone projects;
• each development had been justified on its own merits and each would be pursued, regardless of if the other went ahead.

The fact that there were overlapping environmental effects, was a relevant but not determinative factor. These overlapping effects could exist where there were independent projects near each other, in which case an assessment of cumulative effects would be required. The environmental statement provided had been adequate in its assessment of the cumulative effects - whilst it was a narrower exercise to assess the cumulative effects than the assessment of both sites as a single project, it did not mean that a more comprehensive "single project" assessment was necessary. 

Once the scope of the project was identified, a cumulative assessment was the only thing the law required. The assessment had met the standard required by the Regulations, when reading together with the definition of "environmental assessment". The local authority had considered whether the developments were a single project and found out that they were not, and so it concluded to refuse the application (they disclosed no error of law).