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It was not irrational for a Council to find that an environmental impact assessment was not required before planning permission was granted to a development in an area of outstanding natural beauty..
20 December 2013
Administrative Court, Queen's Bench Division
HH Judge Birtles, sitting as a Judge of the High Court
(i) This was a substantive judicial review hearing of the decision by Cornwall Council to grant planning permission for the development of 15 affordable dwellings and associated works on land at Trevone Farm in Padstow, Cornwall. The site is within the Cornwall Area of Outstanding Natural Beauty (AONB).
(ii) The decision was challenged on the basis that the Council unlawfully failed to carry out an environmental impact assessment (EIA) pursuant to EU Directive EEC/85/337, incorporated into UK domestic law by the Town and Country Planning (Environmental Impact Assesment) (England and Wales) Regulations 1999.
(iii) Birtles J (dismissing the judicial review application) held: the Council was entitled to find that the development was not an EIA development. (1) The Council did not fail to apply its own policy that all major development proposals in an AONB should be accompanied by an environmental assessment. Whether a proposal is a major development is a matter of planning judgment to be exercised by the relevant decision maker on a case by case basis. If the Council had intended to use a numerical rule for assessing whether developments were "major developments" under this policy it would have included one. The impact of the development on the environment was considered by the Council and weighed against other decisions, and the policy described above was referred to throughout the Council's determinations. (2) The Council did not fail to have regard to or apply the precautionary principle. Guidance in the case law indicates that the fact of permanent and irreversible harm alone does not automatically require an EIA. The fact that the harm is permanent and irreversible is a factor to be considered in deciding whether the development is likely to have a "significant effect on the environment by virtue of factors such as its nature, size or location", which is a matter of judgment for the officers. On a fair reading of the Screening Opinion published by the Council it was considered that the development would not have significant effects so as to require an EIA. (3) The Council did not misdirect itself in treating the limited size of the development as a determinative factor. It was clear from the Screening Opinion that size was not the only factor which the Council considered in coming to its conclusion, and it was open to them to treat size as a material factor, giving it more weight than others. (4) The decision not to subject the development to EIA on the basis that it would not have any likely effects on the environment was not so unreasonable as to be irrational in the Wednesbury sense. The fact that the change to the landscape was permanent, the adverse effects on the character and amenity of the area, and the fact that the area has been described as including "only the very best landscapes" did not mean that it was irrational for the Council to find that the development was unlikely to have significant effects on the environment.
Claim for judicial review dismissed.
 -  - Introduction
 -  - The factual background
 -  - The legislative framework
 -  - The grounds of challenge
 -  - Conclusions