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Articles Planning 11th Sep 2015

Environmental Bulletin: Supreme Court refuses to quash planning permission

Supreme Court refuses to quash planning permission despite wrongful failure to require EIA: R (on the application of Champion) v North Norfolk District Council

In judicial review, it has long been established that the court does not have to grant relief in every case where it finds a failing in the decision making process. By way of example, a planning permission may not be quashed if the court considers that the planning decision would have been the same regardless of the error.

In July 2015, in the case of R (on the application of Champion) v North Norfolk District Council, the Supreme Court sought to “lay down clearer guidance as to the circumstances in which relief may be refused even where an irregularity has been established”.

In 2011, North Norfolk District Council granted planning permission for two silos and a lorry park at a site close to the River Wensum, which is in a Special Area of Conservation (SAC). The Council had not required an Appropriate Assessment of the effects of the development on the SAC for the purposes of the Habitats Directive and gave a screening opinion that Environmental Impact Assessment was not necessary.

As to EIA screening, in giving its decision the Supreme Court reiterated, first, that:

  1. Local planning authorities should, in principle,adopt a screening opinion early in the planning process; and
  2. A negative screening opinion may need to bereviewed in the light of later information.

Endorsing a series of Court of Appeal cases, the Supreme Court also confirmed that mitigation measures could, in an appropriate case, be taken into account at the screening stage. The planning authority must, though, have sufficient information to be able to make an informed judgement as to whether the proposed development is likely to have significant environmental effects and cases of material doubt should generally be resolved in favour of requiring IA.

In Champion, the mitigation measures proposed were not straightforward and there were significant doubts as to how a number of issues should be addressed. Although the remaining problems were ultimately resolved to the satisfaction of Natural England, this was some months after the screening opinion had been given and did not mean that there had been no need for EIA.

In fact, by the time the Supreme Court considered the case, it was common ground between the parties that the Council’s EIA screening process had been defective and that EIA should have been required. The court agreed that the failure to treat this proposal as EIA development was a procedural irregularity.

Notwithstanding the acknowledged irregularity, the court refused to quash the planning permission, concluding that there was nothing to suggest the planning decision would have been different had EIA been carried out.

The Supreme Court said that in assessing whether the contested decision would have been the same, a court should take into account the seriousness of the defect invoked and the extent to which it had deprived the public of access to information and participation in decision making. In

this case, the court said it was clear the public were fully involved in the process and their views were taken into account. The failure to subject the proposal to EIA did not “prevent the fullest possible investigation of the proposal and the involvement of the public” and the claimant’s interests had not been prejudiced.

On a practical note, the court commented that in retrospect the developer may feel it would have been better to have prepared an environmental statement voluntarily rather than relying on the Council’s negative screening opinion. The court observed that while the proposed development had given rise to proper environmental objections which needed to be resolved, it also had support from those who welcomed its potential contribution to the economy of the area. It described as unfortunate the fact that those benefits had by then been delayed for more than 4 years since the environmental objections had been resolved.

Experience may sometimes lead developers to disagree with the court’s observation that the EIA process is intended to be “an aid to efficient and inclusive decision making…not an obstacle race”. Nonetheless, in the right case and carefully managed, a voluntary EIA may prove to be a better way forward than a protracted dispute over screening.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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