Planning permission – Environment – Respondent council deciding proposed development not requiring environmental impact assessment (EIA) or appropriate assessment under relevant environmental regulations – Respondents granting planning permission subject to conditions relating to monitoring of water quality to prevent harm to nearby river – Whether screening opinion defective – Whether respondents entitled to take into account proposed mitigation measures when deciding whether EIA needed — Extent of court’s discretion to refuse relief – Appeal dismissed
In April 2010, the respondent council received a planning application in respect of proposed development at a malting plant in Norfolk by 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. The development site was close to the River Wensum, which was designated as a site of special scientific interest (SSSI) and special area of conservation (SAC).
The respondents issued a screening opinion indicating that the development, if accompanied by effective mitigation measures, was not likely to have significant effects on the environment and so did not require an environmental impact assessment (EIA) under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, implementing Council Directive 85/337/EEC (the EIA Directive). In September 2011, after receiving further information and proposals for mitigation measures that overcame the objections of relevant statutory bodies, the respondents granted planning permission subject to conditions requiring the water quality in the drainage network between the development site and the river to be monitored and, if necessary, restored so as to prevent harm to the SSSI and the SAC. In doing so, they concluded that no “appropriate assessment” of the proposals was needed under the Conservation of Habitats and Species Regulations 2010, implementing Council Directive 92/43/EEC (the Habitats Directive).
The grant of permission was quashed in a judicial review on the grounds that the first respondents’ positions in relation to the screening opinion and the planning conditions were mutually inconsistent, since the screening opinion suggested that there was no relevant risk of pollutants from the plant entering the river while the planning conditions suggested that there was such a risk. That decision was later reversed by the Court of Appeal, which held that the first respondents could properly consider that the conditions were necessary as a precautionary measure for the purposes of reassurance, without considering that, in their absence, pollutants were likely to enter the river: see [2013] EWCA Civ 1657; [2013] PLSCS 317.
The appellant appealed to the Supreme Court, which approved the reasoning of the Court of Appeal set out above but went on to consider other issues concerning: (i) the relationship between an EIA screening opinion and the assessment required under the Habitats legislation; (ii) the appropriate timing of a screening opinion; and (iii) the extent to which the screening opinion could take into account proposed mitigation measures.
Held: The appeal was dismissed.
(1) Issues relating to the timing of “screening” as a matter of law could arise only under the EIA legislation. The Habitats Directive and Regulations contained no equivalent to “screening” under the EIA. They did not provide for a separate stage of “screening” in any formal sense and the formal procedures prescribed for EIA purposes had no counterpart in the Habitats legislation. The process envisaged by article 6 of the Habitats Directive should not be overcomplicated. In cases where it was no obvious, the competent authority would consider whether the “trigger” for appropriate assessment was met, which involved considering whether there was a risk that the proposal might have significant effects. That low informal threshold should not be confused with a “screening opinion” in the EIA sense. All that was required was that, in a case where the authority had found there to be a risk of significant adverse effects to a protected site, there should be an “appropriate assessment”, in the sense of an assessment that was appropriate to the task of satisfying the authority that the project would not adversely affect the integrity of the site concerned, taking account of the matters set out in article 6. Although the context implied a high standard of investigation, no special procedure was prescribed and the issue ultimately rested on the judgment of the authority: Sweetman v An Bord Pleanala Case C-258/11 [2014] PTSR 1092, Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw [2006] 2 CMLR 683, R (on the application of Hart District Council v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin); [2008] 2 P&CR 16; [2008] PLSCS 131 and No Adastral New Town Ltd v Suffolk Coastal District Council [2015] EWCA Civ 88; [2015] PLSCS 59 applied.
In light of the new information provided and the mitigation measures proposed during the planning process, the respondents had been satisfied, in common with their expert consultees, that any material risk of significant effects of the SAC had been eliminated. Although that was expressed as a finding that no appropriate assessment was required, there was no reason to think that the conclusion would have been different had the respondents decided from the outset that such an assessment was required and the investigation had been carried out in that context. The appellant could point to no further action which would have been required to satisfy the required standard. The mere failure to exercise the article 6(3) “trigger” at an earlier stage did not itself undermine the legality of the final decision.
(2) The position under the EIA legislation was that authorities should, in principle, adopt screening opinions early in the planning process. A negative screening opinion might need to be reviewed in the light of later information. However, that did not mean that a legally defective opinion that no EIA was required, or a failure to conduct a screening exercise at all, could be remedied by carrying out an analogous assessment outside the EIA Regulations. Even if that exercise resulted in the development of mitigation measures which were in themselves satisfactory, it would subvert the purposes of the EIA Directive for that exercise to be conducted outside the procedural framework, including the environmental statement and consultation, set up by the EIA Regulations.
It had been appropriate for the respondents to carry out a screening opinion in April 2010 once the planning application was formally registered but their screening exercise had been legally defective. Since the pollution prevention measures had not yet been fully identified at that stage, the respondents could not be satisfied that the mitigation measures would prevent a risk of pollutants entering the river. The case was an archetypal case for an EIA, which would have ensured that the risks and the measures intended to address them could be set out in the environmental statement and subject to consultation in that context. The defect in the respondents’ screening opinion had not been remedied by what followed. It was intrinsic to the scheme of the EIA legislation that the classification of a proposal should be governed by the characteristics and effects of the proposal as presented to the authority, not by reference to steps taken subsequently to address those effects. The respondents should have classified the development as EIA development and it was not enough to say that the potential adverse effects had been addressed in other ways.
(3) It was not permissible to rely on mitigation measures at the permission stage to dispense retrospectively with the requirement for an EIA which should have been initiated at the outset. While there was nothing to rule out consideration of mitigating measures at the screening stage, the EIA Directive and Regulations expressly envisaged that such measures would where appropriate, be included in the environmental statement. An application of the precautionary principle which underlay the EIA Directive implied that cases of material doubt should generally be resolved in favour of an EIA. In the instant case, where the mitigation measures as then proposed were not straightforward, and there were significant doubts as to how they would be resolved, the screening opinion should have gone the other way. The fact that the issues over mitigation were ultimately resolved to the satisfaction of the consultees did not mean that there had been no need for an EIA. The failure to treat the proposal as EIA development was a procedural irregularity which was not cured by the final decision: R (on the application of Lebus v South Cambridgeshire District Council [2002] EWHC 2009 (Admin); [2003] Env LR 17; [2002] PLSCS 200 applied.
(4) It was nonetheless appropriate for the court to exercise its discretion to refuse relief in the circumstances of the case. Even where there was a breach of the EIA Regulations, the court retained a discretion to refuse relief if the applicant had in practice been able to enjoy the rights conferred by the European legislation and there had been no substantial prejudice. It was open to the court to take the view, in the light of the evidence provided by the developer or the authority or the case-file documents more generally, that the contested decision would not have been different without the procedural defect in question. In making that assessment, the court would take account of the seriousness of the defect and the extent to which it had deprived the public of the guarantees which were designed to allow access to information and participation in decision-making in accordance with the objectives of the EIA Directive. In the instant case, the environmental issues were not particularly complex or novel and the only one of substance was how to achieve adequate hydrological separation between the activities on the site and the river. The authority was entitled to conclude that, applying the appropriate tests and taking into account the agreed mitigation measures, the proposal would not have significant effects on the SAC. There was nothing to suggest that the decision would have been different had their investigations and consultations taken place within the framework of the EIA Regulations. The failure to follow that framework had not, in the event, prevented the fullest possible investigation or the proposal and the involvement of the public: Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51 and Gemeinde Altrip v Land Rheinland-Pfalz Case C-72/12 [2014] PTSR 311 applied.
Richard Buxton, of Richard Buxton Environmental & Public Law, of Cambridge, appeared for the appellant; Christopher Lockhart-Mummery QC (instructed by Howes Percival, of Norwich) appeared for the respondents.
Sally Dobson, barrister
