An important planning decision was handed down by the Supreme Court earlier this year in the case of R (Champion) v North Norfolk District Council and another. This involved environmental impact assessment (“EIA”) as well as appropriate assessment.
As anyone who follows the law in this area knows, EIA has been big business for challengers in recent years. This decision suggests that either the tide is turning or else the courts are becoming impatient with technical or procedural challenges. It also serves as a warning to impatient developers: sometimes a stitch in time saves nine!
The regulations on EIA and appropriate assessment both come from European law and both are guided by a ‘precautionary principle’, which reflects the high level of protection pursued by Community policy on the environment. Both sets of regulations apply to types of development that are likely to have significant effects on sensitive sites. Their effect is to prevent decision-makers from granting consent unless the effects of the development are properly understood.
The proposals here were for two silos and a lorry park on a site close to the River Wensum in Norfolk. EIA was a prospect because of the scale of the development and its effects; appropriate assessment was relevant because the river was designated a Special Area of Conservation (“SAC”). Yet no EIA was undertaken and no formal consideration of appropriate assessment had occurred. Instead, the development had been screened as not requiring EIA; as regards the SAC a dialogue had taken place regarding the mitigation effects of water overrunning which resulted in an agreed scheme of mitigation.
The Supreme Court held the council’s ‘negative’ screening decision on EIA was a clear procedural defect that could not be remedied – the screening had been undertaken prematurely before relevant prevention measures had been identified. It should have been re-screened as soon as those measures were known. Luckily the defect was not fatal because the mitigation established under the appropriate assessment regime was all that could have been sought following a properly administered EIA assessment. So the mitigation satisfied the Court that any significant risk of the proposals actually affecting the river had been eliminated. No prejudice had been caused to the challengers’ rights under European law. So the Supreme Court refused to exercise its discretion – and the appeal was dismissed.
For developers this really underlines the importance of engaging critically with the relevant consenting bodies from the outset – and engaging with them on the correct legal steps that need to be undertaken.
Pressing for a second EIA screening decision after the pollution prevention measures were identified might look counter-intuitive to a developer eager to get his consent.
But it would have remedied the procedural defect that gave the challenger his technical argument.
Similarly, “badging up” the mitigation as an “appropriate assessment document under the Habitats Directive” might seem like yet another obscure document generated by the planning application process. But couching the mitigation in these terms might well have made the challenger think twice about the merits and their chances of success. In the long run that would have saved time and money.