In the recent case of R (Champion) v North Norfolk District Council, the Supreme Court found that the Council had breached requirements of the EIA regulations in the course of determining a planning permission for the construction of two silos and a lorry park by the River Wensum. However, the Supreme Court exercised its discretion not to quash the planning permission.
The EIA screening opinion concluded that the proposal was not EIA development. However, consultees remained concerned that there was a significant risk that the development would cause pollutants to enter the river. The Council therefore asked the applicant to develop various mitigation measures and granted the permission only after the consultees were satisfied and had withdrawn their objections.
It was not in dispute that the initial screening exercise had been flawed on the basis that the Council had not had sufficient information to conclude that the risk of pollutants entering the river had been removed. The Supreme Court held that this error had not been remedied by the subsequent efforts of the Council to address that risk and satisfy consultees. It was held that the decision as to whether a proposal is EIA development should be based on “the characteristics and effects of the proposal as presented to the authority, not by reference to steps subsequently taken to address those effects”.
The Supreme Court was also asked to consider the whether the authority had been entitled to rely on the agreed mitigation measures to conclude that an EIA was not required. It was held that there is nothing to preclude the consideration of mitigation measures at the screening stage but that such measures should, where appropriate, be included in the environmental statement.
Despite finding that the EIA Regulations had been breached, the Supreme Court decided to use its discretion not to quash the planning permission. The Supreme Court found that the risks of the proposal had been fully investigated and that a different process would not have resulted in a different decision. The applicant’s interests had not therefore been prejudiced by the legal error.
In this case there had been a significant delay between the conclusion of the screening opinion and the challenge to that screening process. Lord Neuberger PSC commented obiter that there was no reason in principle why, in the exercise of its discretion, the court should not have regard to such delay and its practical effects on parties and the interests of good administration.
R (on the application of Champion) v North Norfolk District Council  UKSC 52