Row over planning permission for lorry park near SSSI heads to Supreme Court

A dispute over the granting by a council of planning permission for a lorry park and barley silos is to be heard by the Supreme Court.

Matthew Champion, a member of the Ryburgh Village Action Group, brought a claim for judicial review against the permission granted in 2011 by North Norfolk District Council for the Crisp Maltings site.

The proposed development consisted of the erection of two silos and the construction of a lorry park with wash bay and ancillary facilities, associated surface water balancing pond, access and landscaping, on a site close to the River Wensum, which is a Site of Special Scientific Interest ("SSSI") and a Special Area of Conservation ("SAC").

The issues of concern related to the risk of pollutants from the site entering the river and damaging the SSSI and the SAC.

Article continues below...

North Norfolk’s development control committee decided that the development was not such as to require either an Environmental Impact Assessment or an Appropriate Assessment under the regulations implementing the Habitats Directive.

The committee also decided that the grant of planning permission should be subject to conditions relating to the monitoring and, if necessary, restoration of water quality in the drainage network between the development site and the River Wensum, so as to avoid harm to the SSSI and the SAC.

In Champion v North Norfolk District Council & Anor [2013] EWHC 1065 (Admin) Deputy High Court Judge Dingemans (as he then was) held that the committee could not rationally adopt both positions at once: the first decision suggested that the committee thought that there was no relevant risk of pollutants entering the river, whereas the second decision suggested that it considered that there was such a risk. For that reason he exercised his discretion to quash the planning permission.

However, the council and the developer successfully overturned the judge’s ruling in the Court of Appeal in Champion, R (on the application of) v North Norfolk District Council & Ors [2013] EWCA Civ 1657.

Lord Justice Richards said he accepted the appellants’ case on the primary ground of appeal, namely that in finding that the council's decisions could not rationally co-exist, the deputy judge erroneously conflated the distinct legal tests involved in determining (a) whether an EIA was required, (b) whether an Appropriate Assessment was required, and/or (c) whether water quality monitoring conditions were appropriate.

“In my judgment, there was no inconsistency between the two positions adopted by the council,” Lord Justice Richards said. “They were sequential and separate aspects of the committee's decision-making process and reasoning.

“The decision that an EIA and an Appropriate Assessment were not required came first. It was the subject of a vote by which the committee indicated its agreement with the officers' view that the development was not likely to have significant effects on the SSSI or the SAC. Unless the committee had accepted that view, the substantive debate on whether to approve the application for permission could not have proceeded.

“The inclusion of conditions relating to the monitoring of water quality came at a later point and, as the minutes of the meeting make clear, was agreed to in order to provide a particular councillor…. with the reassurance she sought in the course of the substantive debate.”

Lord Justice Richards later added: “That conditions should not be imposed unless they are necessary is, strictly speaking, a policy requirement rather than a statutory precondition to their validity…. But in any event the committee could properly consider that the conditions were necessary as a precautionary measure for the purposes of reassurance, without considering that in their absence there was a likelihood that pollutants would enter the river.”

The Court of Appeal judge also decided that the committee “was given sufficient information to enable it to reach a proper conclusion on all relevant matters, and that the conclusion it reached was reasonably open on the materials before it”.

However, permission for the case to go to the Supreme Court has now been granted by a three-judge panel comprising Lord Mance, Lord Sumption and Lord Carnwath.

Champion argues that the Court of Appeal failed to appreciate that the process by which North Norfolk reached its decision not to have EIA and an Appropriate Assessment was unlawful.

At issue is when EIA and Habitats Directive screening must take place. The claimant also argues it was irrelevant to both EIA and Appropriate Assessment processes that mitigation measures were later identified, which were said to reduce these effects to an insignificant level.

(c) HB Editorial Services Ltd 2009-2020