Supreme Court refuses relief despite legal defect before planning permission

The Supreme Council has refused to grant relief despite finding a legal defect in the procedure prior to a district council’s grant of planning permission for a development, in a key case relating to appropriate assessments, EIA assessments and mitigation measures.

The proposed development at the centre of R (on the application of Champion) v North Norfolk District Council and another [2015] UKSC 52 is on a site close to the River Wensum. The project included proposals for a lorry park and two barley silos.

The river is a Special Area of Conservation protected by the EU Habitats Directive (97/92/EC), given effect in the UK by the Conservation and Habitats Species Regulations 2010.

Regulation 61, implementing article 6(3) of the Directive, requires that before giving consent for a project “likely to have a significant effect on a European site”, the competent authority – in this case North Norfolk – must make “an appropriate assessment of the implications for that site”. It may agree to the project “only after having ascertained that it will not adversely affect the integrity of the European site.”

Also relevant to the case was the Environmental Impact Assessment (EIA) Directive, given effect by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

Under these regulations, a competent authority carries out “screening” to decide if a proposal is “likely to have significant effects on the environment”. If so, EIA is required. The EIA process involves an environmental statement and public consultation, which informs the decision whether to grant consent to an EIA development.

Crisp Maltings Group Limited (‘CMGL’) submitted a planning application in October 2009 that included a Flood Risk Assessment (‘FRA’) recognising a risk that surface water runoff from the site would pollute the river. There followed investigation of measures meant to prevent this pollution.

From October 2009 to June 2010 North Norfolk consulted with relevant statutory bodies. It issued a screening opinion on 23 April 2010 stating that EIA was not required.

Between July 2010 and January 2011, two new FRAs and an ecological assessment were prepared, which led to the statutory bodies withdrawing their objections.

The council decided on 20 January 2011 to give delegated powers to its officers to approve the development subject to conditions. This led to local complaints including from Matthew Champion, the appellant and a member of the Ryburgh Village Action Group, who argued that appropriate assessment and EIA were required.

North Norfolk decided to refer the application back to committee and asked for further comments from the appellant, who did not respond.

At the council’s committee meeting of 8 September 2011, planning officers presented a detailed report concluding that appropriate assessment and EIA were not required. The committee resolved to approve the application subject to conditions, including monitoring the river’s water quality.

Matthew Champion challenged the consent successfully before the High Court for failure to comply with the EIA and Habitats legislation, but lost in the Court of Appeal. He took the case to the Supreme Court.

A five-justice panel – comprising Lord Neuberger (President), Lord Mance, Lord Clarke, Lord Carnwath and Lord Toulson – heard the case on 23 June 2015.

The Supreme Court unanimously dismissed the appeal. Lord Carnwath gave a judgment with which Lord Neuberger, Lord Mance, Lord Clarke and Lord Toulson agreed.

Lord Carnwath said the two issues were the timing of the council’s decisions that appropriate assessment or EIA was not required, and the relevance of measures meant to address adverse effects on the river from the site.
 
On the first issue, the Supreme Court judge said there was nothing in the Habitats Directive or regulations to support a separate stage of “screening” in any formal sense.

Case-law of the Court of Justice of the European Union described two stages under article 6(3) of the Directive: the appropriate assessment, and the decision in light of it. The CJEU had used the word “trigger” to set the threshold for the first stage.

The formal procedures in the EIA regulations, including “screening”, an environmental statement, and mandatory public consultation, had no counterpart in the habitats legislation, Lord Carnwarth said.

“[In} cases where it is not obvious, the competent authority will consider whether the ‘trigger’ for appropriate assessment is met,….But this informal threshold decision is not to be confused with a formal ‘screening opinion’ in the EIA sense,” the judge found.

“The operative words are those of the Habitats Directive itself,” he added. “All that is required is that, in a case where the authority has found there to be a risk of significant adverse effects to a protected site, there should be an ‘appropriate assessment’.”

Lord Carnwath said that, in short, no special procedure was prescribed, and, while a high standard of investigation was demanded, the issue ultimately rested on the judgement of the authority.

In this case, the planning authority (North Norfolk) and the expert consultees were satisfied that any material risk of significant effects on the river had been eliminated.

“Although this was expressed by the officers as a finding that no appropriate assessment under article 6(3) was required, there is no reason to think that the conclusion would have been any different if they had decided from the outset that appropriate assessment was required, and the investigation had been carried out in that context….The mere failure to exercise the article 6(3) ‘trigger’ at an earlier stage does not in itself undermine the legality of the final decision,” the judge found.

Lord Carnwath said it was not in dispute that authorities should in principle adopt screening opinions early in the planning process. “That intention is expressed in the preamble to the EIA Directive, and carried into the trigger events in the EIA Regulations. Equally, it is not in dispute that a negative screening opinion may need to be reviewed in the light of later information.”

The Supreme Court judge said that though a negative opinion, lawfully arrived at on the information then available, might need to be reviewed in light of subsequent information, this did not mean that a legally defective screening opinion not to require EIA, or a failure to conduct a screening opinion at all, could be cured by carrying out an assessment exercise outside the EIA regulations.

Lord Carnwath said that in this case it was accepted that North Norfolk’s screening exercise in April 2010 was legally defective: the pollution prevention measures had not been fully identified at that point, so the council could not be satisfied then that mitigation measures would prevent a risk of pollutants entering the river.

“This could be regarded as an archetypal case for environmental assessment under the EIA Regulations, so that the risks and the measures to address them could be set out in the environmental statement and subject to consultation and investigation,” he added.

The judge added that this defect had not been not remedied by what followed: it was not enough to say that the potential adverse effects had now been addressed in other ways. 

On the second issue, Champion disputed the legality of North Norfolk’s reliance on mitigation measures, at the stage of granting planning permission, to dispense retrospectively with the requirement for EIA which should have been initiated at the outset.

Lord Carnwath said there was nothing to rule out consideration of mitigation measures at the EIA screening stage, but the Directive and the regulations expressly envisaged that they would where appropriate be included in the environmental statement.

“Application of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA,” he added.

Lord Carnwath concluded that the failure to treat this proposal as EIA development was a procedural irregularity, which was not cured by the final decision.

The judge noted that despite the legal defect in the procedure leading to the grant of planning permission, the court retained a discretion to refuse relief if the applicant had been able in practice to enjoy the rights conferred by European legislation and there was no substantial prejudice.

Lord Carnwath said he had no doubt that the Supreme Court should in this case exercise its discretion to refuse relief.

The judge suggested that this was not a case where the environmental issues were of particular complexity or novelty, adding that there was only one issue of substance: how to achieve adequate hydrological separation between the activities on the site and the river.

“It is a striking feature of the process that each of the statutory agencies involved was at pains to form its own view of the effectiveness of the proposed measures, and that final agreement was only achieved after a number of revisions,” he noted.

“It is also clear from the final report that the public were fully involved in the process and their views were taken into account. It is notable also that Mr Champion himself, having been given the opportunity to raise any specific points of concern not covered by Natural England before the final decision, was unable to do so. That remains the case.”

Lord Justice Carnwath concluded: “Although the proposal should have been subject to assessment under the EIA Regulations, that failure did not in the event prevent the fullest possible investigation of the proposal and the involvement of the public.

“There is no reason to think that a different process would have resulted in a different decision, and Mr Champion’s interests have not been prejudiced.”

Dismissing the appeal, the judge also said he saw no need for a reference to the CJEU.

Commenting on the outcome on Twitter, the appellant’s solicitor, Richard Buxton, suggested it was a “sad day” for effective environmental law with compliance with EU Habitats and EIA directives submitting to the Supreme Court’s discretion in relation to the council’s failures.

[This article is based heavily on the press summary supplied by the Supreme Court]