In Commercial Estates Group v Secretary of state for communities and local government  EWHC 3089 (Admin), the high court rejected claims that an environmental impact assessment (EIA) was necessary before the communities secretary approved plans for a residential development.
Commercial Estates Group (CEG) claimed that the communities secretary should have taken into account the potential large housing allocation (the sustainable urban extension or SUE proposal), which was in limbo following comments by the planning inspector, as it was a material consideration in the decision.
It also argued that it was reasonably foreseeable that the SUE proposal would eventually come forward and the secretary’s failure to consider it meant that the decision was unlawful.
The court agreed that the test was whether it was reasonably foreseeable that another development would occur. However, it considered it was unarguable that the common law meaning of reasonably foreseeable should apply.
The communities secretary had reasonably concluded that the process of creating a draft core strategy for the area had stalled and that the prospects of the wider development becoming a reality were unpredictable.
He had taken into account the fact that the core strategy had not yet been approved and that this had an effect on the likelihood of CEG’s proposal coming to fruition. On that basis, he was entitled to conclude that CEG’s proposal was not reasonably foreseeable.
The court would only interfere if the decision was “Wednesbury unreasonable” – that is, that no sensible decision maker could have come to that conclusion.