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BALLS IN COURT

LEGAL

As the end of yet another football season hovers into view, thoughts turn to Mr Catt, who lives near Withdean Stadium in Brighton, writes Sue Lindsey.

Last year he failed in his bid to prove that the city council's planners had been wrong to allow Brighton & Hove Albion (the Seagulls) to extend their temporary use of the stadium until June 2008 (AJ 07.09.06).

The judge found that there was no problem with the council's screening opinion that had concluded that an environmental-impact assessment was unnecessary.

He also decided that, even if he was wrong about that, Mr Catt was too late to complain because the three-month time limit in which a judicial review application should have been made started when the screening opinion was adopted, not when the subsequent planning decision was made.

It seems that, having failed to beat them, Mr Catt did not opt to buy a stripy scarf and blend in with the crowd. He put on a suit and went to see the Court of Appeal instead. But, unfortunately for Mr Catt, it looks like he will have to endure at least one more season of football at the stadium. He failed to persuade the Court that the council should not have taken proposed mitigation measures into account when deciding whether the use of the stadium was likely to have a significant environmental effect.

While there is no general rule of thumb as to whether conditions or remedial measures may be taken into account, Lord Justice Pill said that in this case it would be 'ludicrous' to ignore the effect of the imposition of conditions such as how often and on what days matches could be played.

However, there may be cases in which the effectiveness of remedial measures is uncertain. In short, every development is different. The way the screening decision is approached and whether and to what extent proposed remedial measures can be taken into account must depend on the particular circumstances.

The Court of Appeal reversed its decision on time limits - good news for those who want to complain about screening opinions, but potentially bad news for developers. The court decided that the three-month period for applying for judicial review of a planning decision, on the basis that a screening opinion was unlawful, only starts running from the date planning permission is granted, not from the date of adoption of the screening opinion. This is because the point at which the threat to the challengers' interests crystallises is when planning permission is granted.

While the screening opinion can be challenged, it does not inevitably lead to a particular planning decision.

However, the court emphasised that any application for judicial review of a planning decision should be made without delay. Where there is undue delay, the court can refuse to grant relief. It is easy to see how a developer who lawfully proceeds with building works once planning permission has been granted could be prejudiced by a subsequent challenge to the planners' decision. In considering delay in a case where a challenge is based on the alleged unlawfulness of the screening opinion, the court would be entitled to take into account that the challenger knew about the screening opinion before planning permission was granted.

Sue Lindsey is a barrister at Crown Office Chambers in London. Visit www. crownofficechambers.com

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