Key Facts
- •BW Farms Limited applied to quash the Secretary of State's screening direction that their planning application for alterations to livestock buildings was EIA development.
- •The application involved internal alterations to facilitate a slatted floor system and ventilation in existing buildings previously used for poultry.
- •The Claimant argued the development was operational, not a change of use, and thus excluded from EIA requirements under the Town and Country Planning Act 1990.
- •The Secretary of State considered odour and ammonia impact reports, a fallback scenario (returning to solid floors and natural ventilation), and Natural England's advice on cumulative impacts.
- •The Secretary of State concluded there was uncertainty about significant environmental effects, particularly concerning cumulative impacts, leading to the EIA requirement.
Legal Principles
EIA development is defined in regulation 2(1) of the EIA Regulations as Schedule 1 or Schedule 2 development likely to have significant effects on the environment.
EIA Regulations
When deciding whether Schedule 2 development is EIA development, the decision-maker must consider all information provided and relevant Schedule 3 criteria, including cumulation with other developments.
EIA Regulations, Regulation 5(4)
The Secretary of State's screening decision is reviewed on Wednesbury grounds; the court will not interfere unless the decision is irrational.
R (Hockley) v. Essex County Council [2013] EWHC 4051 (Admin)
For a fallback development to be a material consideration, a 'real prospect' of its implementation, not necessarily probability, is sufficient. The assessment is fact-specific and relies on planning judgment.
Mansell v. Tonbridge and Malling BC [2017] EWCA Civ 1314
In considering changes to existing development under Schedule 2 paragraph 13(b), the decision-maker must consider the overall effect of the modified project, not just the modifications themselves.
R (on the application of Baker) v. Bath and North East Somerset Council [2009] EWHC 595 (Admin)
The screening stage does not require a full environmental assessment; decisions may be based on incomplete information, but reasons must be intelligible and adequate.
R (on the application of Bateman) v. South Cambridgeshire DC [2011] EWCA Civ 157
The decision-maker must consider the precautionary principle and the degree of uncertainty regarding environmental impact. If uncertainties prevent a negative decision, ameliorative measures may be considered.
R (on the application of Loader) v. The Secretary of State for Communities and Local Government [2012] EWCA Civ 869
Outcomes
The claim was dismissed.
The court found no error of law in the Secretary of State's decision. The Secretary of State correctly considered the development as a whole, including the fallback scenario and potential cumulative impacts, and applied the precautionary principle given the uncertainties.