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On appeal from: [2013] EWCA Civ 1657

The Ryburgh Village Action Group, of which the Appellant Mr Champion is a member, had opposed a development by Crisp Maltings Group Ltd on a site close to the River Wensum. The river is a Special Area of Conservation.

The Conservation and Habitats Species Regulations 2010, reg 61, requires that the competent authority must make an “appropriate assessment” of the implications for the site before giving consent for a project that is likely to have a significant effect on the site. In addition, under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the competent authority should carry out “screening” to determine whether a proposal is likely to have significant effects on the environment. If so, Environmental Impact Assessment is required.

Locals including Mr Champion complained that appropriate assessment and EIA were required in this case. However, planning officers concluded that these were not required and the planning committee resolved to approve the application subject to conditions.

Mr Champion challenged this decision and was successful in the High Court but lost in the Court of Appeal. The Supreme Court unanimously dismissed the appeal by Mr Champion against the Court of Appeal’s decision.

The Supreme Court looked at two issues. First, the timing of the council’s decisions that appropriate assessment or EIA were not needed. In terms of appropriate assessment, Lord Carnwath noted that the extent of the requirement is that, where there is a risk of significant adverse effects to a protected site, there is an appropriate assessment. In the present case, the planning authority and the expert consultees were satisfied that the material risk of significant effects on the river had been eliminated. The mere failure to exercise the “trigger” for appropriate assessment at an earlier stage did not in itself undermine the legality of the final decision.  In terms of the EIA screening however, it had been accepted that the council’s screening exercise in April 2010 was legally defective. The Supreme Court noted that the present case was an archetypal case for EIA and the defect was not remedied by what followed.

Second, the Supreme Court looked at the relevance of measures intended to address adverse effects on the river from the site. It noted that cases of material doubt should usually be resolved in favour of EIA and the failure to treat the present proposal as EIA development was a procedural irregularity.

Despite this, the Supreme Court noted that although there was a legal defect in the procedure, it has discretion to refuse relief if the applicant has been able in practice to benefit from the rights conferred by European legislation and if there is no substantial prejudice. It was not evident that the council’s decision would have been different if the procedure had followed the EIA regulations, and concerns about adequate hydrological separation were being addressed.

For judgment, please download: [2015] UKSC 52
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII