R (on the application of Champion) v North Norfolk District Council & Anor [2015] UKSC 52

Mr Champion challenged planning permission granted by North Norfolk District Council for silos and a lorry park near the River Wensum, a protected Special Area of Conservation. The Supreme Court held that although EIA screening was defective, relief should be refused as the outcome would not have differed.

Facts

Crisp Maltings Group Ltd (CMGL) applied for planning permission to erect two grain silos and construct a lorry park with wash bay and ancillary facilities at Great Ryburgh, close to the River Wensum, a Special Area of Conservation (SAC) within the EU Natura 2000 network. North Norfolk District Council granted conditional permission on 13 September 2011, following extensive consultation with Natural England (NE) and the Environment Agency (EA).

The principal environmental concern was the risk of pollutant run-off from the lorry park and wash bay into the river. An EIA screening opinion was adopted on 23 April 2010 by a planning officer, based on a telephone conversation with NE, concluding that EIA was not required provided pollution prevention measures were in place. NE and EA initially objected on the grounds that insufficient information had been provided to determine whether there would be likely significant effects. Following the submission of revised Flood Risk Assessments in July and August 2010 incorporating mitigation measures, the statutory consultees withdrew their objections. The committee resolved to grant permission, including monitoring conditions to address residual concerns.

Mr Champion, a local resident, sought judicial review on the basis that the council had failed to comply with the EIA Directive and Habitats Directive procedural requirements.

Issues

The Supreme Court identified the following principal issues:

• Whether a process analogous to EIA screening is required under the Habitats Directive;
• The correct approach to the timing of screening for EIA;
• Whether and to what extent mitigation measures may be taken into account at the EIA screening stage;
• Whether the court should exercise its discretion to refuse to quash the permission even if procedural defects were established;
• Whether a reference to the CJEU was necessary.

Arguments

Appellant

Mr Buxton argued that the Habitats Directive contained an implicit two-stage process analogous to EIA screening. He submitted that the EIA Directive required screening decisions to be made at an early stage and that mitigation measures could not be relied upon at the consenting stage to retrospectively convert a project likely to have significant effects into one that did not require EIA. The defective screening opinion of April 2010 could not be remedied by later assessments outside the EIA framework.

Respondents

The council argued that any defect at the screening stage was cured by the comprehensive assessment subsequently undertaken, and that the committee was properly informed when it ultimately decided that EIA and appropriate assessment were not required. The mitigation measures had successfully addressed the identified risks to the satisfaction of all statutory consultees.

Judgment

Habitats Directive: No formal screening requirement

Lord Carnwath (with whom the other Justices agreed) held that the Habitats Directive contains no formal screening stage analogous to that under the EIA Regulations. The CJEU in Waddenzee and Sweetman identified the threshold (or ‘trigger’) for requiring appropriate assessment, but this informal threshold decision should not be confused with EIA screening. The operative test is whether the project is likely to have a significant effect on the site, applying the precautionary principle, and if so, an appropriate assessment must be undertaken. No special procedural form is prescribed, though a high standard of investigation is required.

EIA Screening: Timing and Mitigation

The court accepted that screening opinions should be adopted at an early stage and may be reviewed if material new information arises. However, a legally defective screening opinion, or a failure to screen at all, cannot be remedied by carrying out an analogous assessment outside the EIA Regulations. The classification of a proposal is governed by the characteristics and effects of the proposal as presented, not by steps subsequently taken to address those effects.

On mitigation measures, the court endorsed the approach of Sullivan J in R (Lebus) v South Cambridgeshire DC, accepting that while mitigation measures may be considered at screening, the EIA Directive expressly envisages that such measures will be set out in an environmental statement subject to public consultation. Cases of material doubt should generally be resolved in favour of EIA, in line with the precautionary principle.

Applying these principles, the April 2010 screening opinion was defective: at that time the pollution prevention measures had not been adequately worked up and all expert opinion indicated potential risks requiring further investigation. The failure to treat the proposal as EIA development was a procedural irregularity not cured by the final decision.

Discretion

However, the court exercised its discretion to refuse relief. Following Walton v Scottish Ministers and the CJEU’s decision in Gemeinde Altrip, relief may be refused where the contested decision would not have been different absent the procedural defect, and where the public has not been deprived of the procedural guarantees afforded by the EIA Directive. Here, the environmental issues were not complex or novel; there was extensive expert investigation by the statutory consultees; the public was fully involved; and Mr Champion himself had been unable to identify any specific points of concern not addressed by Natural England. There was no reason to think a different process would have produced a different result.

Implications

This decision clarifies several important aspects of environmental assessment law:

Habitats Directive

The judgment confirms that, in English law, there is no formal ‘screening’ requirement under the Habitats Directive in the EIA sense. Authorities must consider whether the trigger for appropriate assessment is met but need not follow any prescribed procedural form. This reduces confusion arising from the loose use of ‘screening’ terminology in the Habitats context.

EIA Screening and Mitigation

The decision reaffirms that the classification of a project as EIA development depends on its characteristics as presented, not on subsequent remedial measures. While mitigation measures can be considered at screening, material doubts should be resolved in favour of requiring EIA. A defective screening opinion cannot be retrospectively cured by assessment outside the EIA framework.

Discretion to Refuse Relief

Most significantly, the case provides authoritative guidance on the court’s discretion to refuse relief where an EIA irregularity has been established. Following Gemeinde Altrip, the court may refuse relief where it is satisfied that the decision would not have been different absent the defect and that the public has not been deprived of the procedural guarantees of the Directive. The seriousness of the defect and its practical effect on public participation are relevant factors.

Practical Significance

The decision is important for planning authorities, developers, and objectors. It signals that purely technical or formal defects in EIA processes may not lead to quashing where the substantive requirements of the Directive have in practice been met. Lord Carnwath emphasised that the EIA process is intended as an aid to efficient and inclusive decision-making, not an obstacle race. He also reserved his position on whether delay in challenging a screening opinion might form an additional ground for refusing relief, indicating future scope for judicial reconsideration of R (Catt) v Brighton & Hove City Council.

Verdict: Appeal dismissed. Although the April 2010 EIA screening opinion was legally defective and the proposal should have been treated as EIA development, the Supreme Court exercised its discretion to refuse to quash the planning permission, because the procedural defect did not prevent full investigation or public involvement and there was no reason to believe a different process would have produced a different decision.

Source: R (on the application of Champion) v North Norfolk District Council & Anor [2015] UKSC 52