Supreme Court rules that EIA omission does not invalidate planning permission

Ref.  R (Champion) v North Norfolk District Council and another [2015] UKSC 52

Third party challenges of planning permission have been frequent in recent years, exposing procedural irregularities in an effort to overturn a decision the party bringing the appeal disagrees with.

Often, these irregularities are so minor as to be disregarded by the courts – leading to rejection of the appeals to which they relate. They are typically found to be of insufficient significance to amount to a legal error which would justify quashing the planning permission decision.

In the above listed case, however, the breach was significant. It was a fact established between the parties that it was appropriate for the LPA to undertake a screening exercise in respect of the scheme proposed by the planning application, and that this exercise had been legally defective. The scheme was the erection of two grain silos and the construction of a lorry park with wash bay and ancillary facilities, on a site close to the River Wensum.

Having found legal defect in the planning process, it was for the courts to assess the consequences of granting relief. The earlier case of Walton v Scottish Ministers (2012) made it clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able to enjoy the rights conferred by European legislation of representations and a fair consideration by the decision-maker, and that there has been no substantial prejudice.

The case of Gemeinde Altrip v Land Rheinland-Pfalz (2014), heard in the European court of Justice, was found also to confirm this position – asserting that not every procedural defect will necessarily have consequences that can possibly affect the legality of a planning decision.

The court therefore dismissed the appeal. Although it was agreed that the proposal should have been subject to an EIA, failure to do so did not prevent the fullest possible investigation of the proposal and the involvement of the public. Crucially, there was no reason to think that strict adherence to the appropriate regulations would have produced a different outcome in this case. Quashing the planning permission could therefore not be justified.

Undertaking an EIA where required is, of course, still of great importance and failing to do so could result in quashing of the permission, if that failure prejudices the decision made. The judgement does however make it clear that procedural error alone, even in relation to compliance with European Directives, will not automatically lead to a planning permission being quashed and there is therefore some hope for those who err in this regard.

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SRJ                                                                                              11.08.15

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