A short note on the Supreme Court decision in Champion re EIA/Habitats

Thu, 23 Jul 2015

The Supreme Court has handed down its judgment in R (oao) Champion v North Norfolk District Council [2015] UKSC 52.  It is a case in which the main practical issues were concerned with: (i) EIA screening opinion and the correct approach to habitats regulations assessment; (ii) the court’s discretion to refuse to quash, and; (iii) the practical advantages of voluntary EIA.

As to the first point, the Supreme Court (Lord Carnwath giving the only judgment) disapproved of the use of the term ‘screening’ in habitats regulations assessments under article 6(3) of the Habitats Directive.  Rather, [41], the process should not be over-complicated.  Where is it not obvious, the competent authority will consider whether the ‘trigger’ for appropriate assessment is met, but this is not to be confused with a formal ‘screening opinion’ in the EIA sense.  All that is required is that in a case where the authority has found there to be a risk of a significant adverse effects to a protected site, there should be an ‘appropriate assessment’.  ‘Appropriate’ is not a technical term.  It indicates no more than that the assessment should be appropriate to the task in hand.

As to EIA screening and mitigation measures, the Supreme Court endorsed the approach taken in a range of Court of Appeal decisions namely that there is nothing to rule out consideration of mitigating measures at the screening stage; but, on the other, that the EIA Directive and the Regulations expressly envisage that mitigation measures will where appropriate be included in the environmental statement [51].  In doubtful cases, the doubt should be resolved in favour of EIA.

As to the second point, the Supreme Court applied the approach which it had taken in Walton and refused to provide relief for a technical breach of EIA, and guiding the Planning Court to take account of the likely exercise of discretion when considering whether to grant permission for judicial review [63].

Lastly, the Supreme Court observed that the proposal in question had been delayed for four years and repeated the observations made in Jones v Mansfield namely that EIA is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle-race.  Voluntary provision of an EIA would have avoided that delay [65].

Written by Richard Kimblin, member of No5 Chambers Planning and Environment Group.

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