In a tear-jerker Victorian ballad, the American minstrel Paul Dresser narrated how a soldier-boy was to be shot at dawn for desertion after his dying mother called for him. “When the truth at last was known, his innocence at once was shown; To save from such an unjust fate, A pardon sent, but ‘twas too late!” The awful deed was done and the boy sent “into the arms of his Maker”.
But in the world of environmental assessment it seems that the late arrival of an important document may not always be so fatal.
In R (oao Silke Roskilly) v. Cornwall County Council [2015] EWHC 3711 an application was made for planning permission for some buildings to allow the restart of mineral extraction at Dean Quarry on the Lizard Peninsula. There was no environmental assessment and the Council gave a screening direction that one was not needed. This is not as surprising as it might sound as the conditions on the quarrying permission had been revised under the ROMP procedure in the Environment Act 1995. However, an objector– Silke Roskilly – had, between the council’s screening opinion and the grant of permission, applied to the Secretary of State for his screening opinion. Regulation 4(8) allows any person to seek screening from the Secretary of State.
Cornwall proceeded to grant the permission without waiting for the Secretary of State’s opinion. When it came through, he decided the development did indeed require an environmental statement. As there is a prohibition on granting planning permission for EIA development without taking the “environmental information” into account, the objector challenged the grant of planning permission.
The developer and Council countered that at the time the decision was taken it was lawful – there was a valid screening opinion of the Council that the planning application was not for EIA development. Nonetheless Mr Justice Dove decided that the later issue of the Secretary of State’s screening opinion meant that the permission was invalid and he quashed it. (He also held that it was irrational for Cornwall not to have waited for the Secretary of State’s opinion, and quashed on that ground as well.)
What is this going to mean in practice? Not only is there no limit on who can seek a screening opinion from the Secretary of State, there also seems to be no time limit. So could one be sought right up to the grant of permission? That would effectively allow objectors to delay the decision considerably whilst waiting for the Secretary of State, especially as Mr Justice Dove held that failure to wait for the Secretary of State’s screening opinion was in that case irrational.
Could one be sought after the permission has been granted? In a slightly confused paragraph 40 Mr Justice Dove seems to entertain this even as he dismisses it, saying “Of course, there will come a time after the grant of planning permission when no screening direction has been requested when that consent is immune for Judicial Review as a result of the passage of time and therefore no purpose could be served by seeking a screening direction from the Secretary of State”. But the reasoning there is not so strong. Whilst the six week period for judicial review may pass, that does not make the permission wholly immune from challenge. In the first place, there is a discretion to extend the JR period (which Mr Justice Dove had to exercise himself in that case, and which he has exercised before in Gerber v Wiltshire Council [2015] EWHC 524). Secondly, validity can sometimes be raised in a collateral challenge. So for example, if the applicant sought to make a s.73 application for permission to develop without complying with conditions subject to which a previous permission was granted, the validity of the previous permission might come under scrutiny, and if successful that would remove the basis of the s.73 application.
Which is the “unjust fate” now?
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