The site was designated as metropolitan open land and used as a community open space. It also encompassed a site of importance for nature conservation and part of a river park. The council granted two permissions for the development. On the first application, a screening opinion was provided confirming that an environmental impact assessment (EIA) was not required.
On the second permission, two conditions were imposed requiring approval of an ecological construction management method statement and an ecological management plan. However, no screening opinion was undertaken either at the time the application was submitted or when discharge of the conditions was being considered, with the council concluding that it was no different from the first application.
A local resident, who was granted anonymity because of possible repercussions from football club fans, argued that the council had failed to comply with European Directive 2011/93 and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, which required it to consider the environmental impacts of developments when discharging pre-commencement conditions.
The claimant also alleged that the council had failed to comply with an obligation to ensure that EIA is undertaken in all cases where significant environmental effects are likely, in this case due to the presence of reptiles, amphibians, flora and other fauna of which the council was aware. On this basis, the claimant sought a full judicial review of the decision on the grounds that it was not certain that the council’s decision not to require an EIA would be the same.
Applying the principles established in Champion v North Norfolk District Council , Mrs Justice Lang confirmed that screening opinions must be kept under review and this had not been done in the case before her. Applying section 31 of the Senior Courts Act 1981, the judge dismissed claims by the council and interested party that the outcome would have been the same without an EIA.
In granting permission for judicial review, the judge also confirmed that the anonymity order should be continued to protect the claimant’s identity. She found evidence of threats having been made to some residents opposing the scheme and was satisfied that the claimant’s identity made no difference to the merit of the claim.
XSWFX v Ealing London Borough Council
Ref:  4 WLUK 37
Date: 2 April 2020