Loader v Secretary of State for Communities & Local Government

Transcript date:

Monday, October 25, 2010



Court of Appeal

Judgement type:



LJ Sullivan

Transcript file:

Case No: C1/2010/0650
Neutral Citation Number: [2010] EWCA Civ 1305

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 25 October 2010


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(DAR Transcript of
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Mr James Periera (instructed by Messrs Richard Buxton) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented
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(As Approved by the Court)
Crown Copyright©
Lord Justice Sullivan:

1. I grant permission to appeal. I do so for two reasons. First, once it was accepted, as it was accepted on behalf of the Secretary of State before the judge, that it was arguable that the European Commission's guidance was the correct test, and once there was an arguable point that although the Secretary of State had had regard to the guidance he had not applied it, then in my judgment it was also arguable, bearing in mind the relatively low threshold for obtaining permission to apply for judicial review, that it was not inevitable that the conclusion as to whether significant effects were likely would be the same.

2. That argument is based firstly on the reasons for refusal, which raised certain matters that were in issue and responded to in the planning inspectorate's checklist, for example in answer to question 11:

"Are there any areas on or around the location which are protected under international or national or local legislation for their ecological, landscape, cultural or other value, which could be affected by the project?"

The answer in the checklist was: "Yes", adjacent Grade II listed building. Building not affected although views/setting may be. In answer to the question: "Is this likely to result in a significant effect, yes/no, why?" The answer is: "No. No significant effects. Development not out of character with surroundings". That is to be contrasted with the council's third reason for refusing planning permission, which was in these terms:

"The cumulative impact of the poor design and siting of the club house and indoor rink building and design of the sheltered apartment building would not meet the requirement to provide high quality design in accordance with paragraphs 33-35 of PPS1 ‘Delivering Sustainable Development'. It would be out of character and detrimental to the streetscape and the setting of the adjoining listed terrace, and would be contrary to [certain policies in the development plan]."

Thus, the planning inspectorate's screening checklist, on its face at least, purported to resolve one of the matters that would have to be resolved by the inspector at the inquiry -- that is to say, whether ground 3 of the refusal was or was not well founded.

3. There are also the answers to the questions 3, 19 and 23 that were referred to before the learned judge, but the argument that the answer would not necessarily be the same if a different test was applied can also be founded on a comparison of the planning inspectorate's checklist with the suggested checklist submitted under cover of a letter dated 11 September 2009 from the appellant's solicitors in which the questions in the checklist are purportedly answered by applying the European Commission's guidance. I do emphasize that I am not endorsing the accuracy of that suggested checklist, but the question before the judge was simply whether, arguably, if a different test was applied a different conclusion might have been reached.

4. The second reason for granting permission is that the issue raised in the first part of the appellant's ground 1 -- that is to say, is the European Commission's guidance as to the correct approach to the question of significant environmental effects -- is undoubtedly an issue of general importance and perhaps of some consequence for this appeal. It is an issue which might well have to be considered for the purposes of dealing with the second part of the appellant's ground 1, which was the ground on which the judge granted the appellant permission to apply for judicial review: that is to say, the more narrow ground of the extent to which mitigation measures can be relied upon in a screening opinion. It seems to me desirable that the answer to that question should not be considered in isolation from the wider question; that is to say, whether the European Commission's guidance is the correct test.

5. It seems to me that the sensible course in the circumstances is to grant permission to apply for judicial review on the first limb of ground 1 in the judicial review proceedings, rather than simply granting permission to appeal to this court, so that the application for judicial review can be pursued in respect of the entirety of ground 1 in the Administrative Court. I do not reserve the judicial review application to this court, but I give permission to apply for judicial review so that the whole of ground 1 will be before the Administrative Court judge when he comes to consider the substantive judicial review application.

Order: Application granted