The Supreme Court has now had an opportunity to revisit its statements (in the above respect) in Walton v The Scottish Ministers [2012] UKSC 44, in the light of the subsequent judgment of the CJEU in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) [2014] PTSR 311. It has concluded that there was nothing inconsistent in the principles laid down by the CJEU, and the approach taken earlier by the Supreme Court in Walton.
There, Lord Carnwath – in dealing with the implications of non-compliance with an EU Directive – stated as follows: “Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source.”
(This statement has been seen as sanctioning judicially a less rigid approach to the consequences of breaches of the procedural requirements of the EIA Directive and the EIA Regulations, in terms of the court’s discretion not to quash a planning permission.)
In R (on the application of Champion) v North Norfolk District Council [2015] UKSC 52, the appellant had applied to quash the grant of planning permission by the local planning authority (“LPA”) – following the adoption of a negative screening opinion – for the erection of two silos to store barley, together with associated works including a surface water balancing pond. The application site was close to a river that was both an SSSI and a SAC. One of the claimant’s concerns was that pollution from the proposed development would enter the river.
The Supreme Court held that the failure by the LPA to treat the development as an EIA development amounted to a procedural irregularity. Nevertheless, applying the approach taken in Walton, it decided that it was appropriate to exercise the court’s discretion to refuse relief. This was not a case where the environmental issues were of particular complexity or novelty. There was only one issue of substance, namely how to achieve hydrological separation between the activities on the application site and the river. It was clear that the public were fully involved in the planning application process, and that their views had been taken into account. It was also notable that the appellant himself had been given the opportunity to raise any specific points of concern not covered by Natural England.
John Martin is a planning law consultant
