Screening opinions and reasons

The High Court has recently examined whether a failure to give adequate reasons for a screening opinion automatically gives rise to a presumption that a planning permission should be quashed. John Hunter looks at the judgment.

The claim in R (Jedwell) v Denbighshire CC and others [2016] EWHC 458 (Admin) involved an application to quash a planning permission granted in July 2013 for the construction of two 46 metre-high wind turbines in North Wales. The development had previously been the subject of a negative screening opinion, adopted in 2012, which concluded that EIA was not required because it was unlikely to give rise to significant effects on the environment.

Following the resolution to grant permission in 2013, the claimant’s solicitors sent a pre-action letter challenging the resolution on various grounds, including that the officer conducting the screening exercise had not taken into account cumulative effects. The local planning authority replied stating that it was inconceivable that such effects had not been taken into account and pointed out that there was no duty in Wales for reasons to be given with the screening opinion – such reasons were only required following a request (pursuant to the case of R (Mellor) v SSCLG [2010] Env LR 18). The claimant’s solicitors replied asking for “contemporaneous reasons” – to which the authority replied stating that it had searched the file and had nothing to add to its earlier response. The screening officer herself was not contacted as she was on maternity leave at the time.

The claimant subsequently issued a claim for judicial review. Whilst other grounds of challenge failed completely, the High Court held that the authority had been in breach of its EU law duty to give reasons for the screening opinion following the request for them. Nevertheless, the judge (Foskett J) held that this breach had been cured by the production of a witness statement by the screening officer which confirmed that she had taken them into account. He refused, however, to allow cross-examination of her before coming to that conclusion.

The claimant appealed to the Court of Appeal which held that the judge should have allowed the officer to be cross-examined. The case was then remitted to a different judge in the High Court (Hickinbottom J) for cross-examination and a decision on remedy. Following a further hearing and cross-examination of the officer, he concluded that she had in fact taken into account cumulative effects and declined to quash the permission, instead merely granting a declaration that the authority had been in breach of its EU law duty to give reasons upon request. The judge accepted the council’s and the interested party’s argument that a breach of a duty to give reasons which arises separately from the decision-making process does not necessarily lead to a presumption that a decision must be quashed. He said:

“The flaw in [the Claimant’s] argument is that it focuses excessively upon the validity of the screening opinion, rather than whether a flawed screening opinion led to a failure to conduct an EIA in circumstances in which an EIA ought to have been conducted, and accordingly undermined the planning process (see R (Berky) v Newport City Council [2012] EWCA Civ 378 at 22 per Carnwath LJ (as he then was))…

R (Richardson) v North Yorkshire County Council [2003] EWHC 764 (Admin) concerned regulation 21(1) of the 1999 Regulations, under which an authority is required to make available for public inspection a statement of reasons and considerations upon which a decision on a planning application which requires an EIA is based. In giving judgment, Richards J (as he then was) at [47], rightly indicated that the consequences of a failure to comply with a requirement to give reasons depend very much on the statutory context and the particular circumstances of the case. Having considered the relevant authorities, he concluded that:

“The fact that the requirement focuses on the availability of information for public inspection after the decision has been made, rather than on the decision-making process, leads me to the view that a breach of regulation 21(1) ought not to lead necessarily to the quashing of the decision itself. A breach should be capable in principle of being remedied, and the legislative purpose achieved, by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.”

In other words, whilst many breaches of public law duty will lead to a presumption that the resultant decision should be quashed – subject to the decision-maker showing the decision would inevitably have been the same and, now, section 31(3C) of the Senior Courts Act 1981) – in these circumstances, the presumption will or may be different. That analysis was approved on appeal ([2003] EWCA Civ 1860 at [43] per Simon Brown LJ).

Mr Hunter submitted, with considerable force, that the same analysis applies to reasons for negative screening opinions under the 1999 Regulations. The Regulations, following the 1985 Directive, do not require reasons to be given with the opinion. Mellor requires them to be given on request. However, reasons are not part of the decision-making process. As with regulation 21(1), if the relevant authority has not given appropriate reasons within a reasonable time of request and before proceedings have been commenced, a breach of the Mellor duty should be capable in principle of being remedied by a mandatory order requiring the authority to make available a statement at the place, and containing the information, specified in the regulation.”

John Hunter is a barrister at Kings Chambers. He appeared for Denbighshire County Council in this case. John can be contacted on 0345 034 3444 or This email address is being protected from spambots. You need JavaScript enabled to view it..