High Court quashes screening direction which relied on assumptions about the environmental effect of proposed development

Summary

In R (on the application of Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin), the High Court considered what the correct approach to EIA screening should be when there is uncertainty about the environmental impact of a proposed development. The Court quashed the screening direction and confirmed that screening authorities should take a precautionary approach and should not base their decisions on the assumption that unidentified remediation measures will be successful. These are points which developers should bear in mind during the screening process.

Legal Background

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations) implement the EU’s legal requirements for environmental impact assessments (EIAs) in the UK.

Regulation 3 prohibits planning permission being granted for “EIA Development” unless an EIA has been carried out. EIA Development consists of:

• the specific types of development listed in Schedule 1 of the EIA Regulations; and
• the types of development listed in Schedule 2, but only if the development is likely to have significant effects on the environment.

Part 2 of the EIA Regulations enables local planning authorities and/or the Secretary of State to carry out “screening” to determine whether a proposal qualifies as EIA development. Under regulation 5(4), in making a screening direction the decision-maker must take into account a number of factors. These include any information provided by the applicant for the EIA as well as the possibility of effectively reducing the environmental impact of a development.

Factual Background

These judicial review proceedings concerned a screening direction made by the Secretary of State for Housing, Communities and Local Government (SoS) in August 2019, in which the SoS decided that an EIA was not required (the Screening Direction).

The Application

The proposal was for outline planning permission to redevelop a site within the Kent Downs Area of Outstanding National Beauty (the Site), by demolishing existing structures and erecting up to twenty residential units. In the 1990s, the Site was one of only four across the country used to dispose of animal carcasses which had been infected with bovine spongiform encephalopathy (BSE), a disease which caused the outbreak of Creutzfeldt-Jakob disease (CJD) in humans.

Prior to the submission of the planning application, a Phase 1 Preliminary Risk Assessment and a Ground Investigation & Generic Risk Assessment was prepared on behalf of the developer (the Reports). These failed to identify that the Site had been used to dispose of BSE-infected carcasses and did not consider the risks posed by this. The Environment Agency advised Ashford Borough Council (the Council) that permission could be granted if specific conditions were imposed. It also recognised that a full site investigation would be required and that the remediation statement was, as submitted, insufficient. A local resident also contacted the Council to raise concerns about the Reports. In response, the business which had prepared the Reports asserted that the risks of CJD infection at the Site were negligible in any event.

The Council resolved to grant outline planning permission in November 2018, subject to conditions. Condition 21 required that a scheme to deal with contamination and/or groundwater was agreed with the Council and implemented before the development could begin; condition 22 required a further risk assessment to be carried out (and, if necessary, a remediation scheme prepared) if unexpected contamination was found during construction.

The Screening Direction

In August 2019, the SoS issued the Screening Direction in accordance with regulation 5 of the EIA Regulations. The SoS took a broadly similar approach to the Council, which had prepared its own screening direction previously. The development fell within Schedule 2 of the EIA Regulations as it was an “urban development project” within a “sensitive area”, as defined in regulation 2 (in this case, an Area of Outstanding National Beauty). However, the SoS decided that it was not “EIA Development” because it was not likely to have significant effects on the environment, as the proposed planning conditions were satisfactory in addressing any potential contamination issues or risks to human health at the Site.

The judgment of the High Court

A local resident challenged the Screening Direction made by the SoS. The issue before the court was whether the SoS had been correct in concluding that the proposal was not likely to have significant effects on the environment (so did not require an EIA).

Mrs Justice Lang considered that there was a lack of expert evidence and risk assessment regarding BSE-related contamination at the Site and the risk this might pose to human health. The measures which would be required to remediate potential contamination had not been identified. The judge considered that the Reports had been very inadequate - not least because they failed to reference the Site’s former use. The Reports were also far from conclusive: they emphasised that fuller investigations of potential BSE contamination were required; only eight trial pits had been dug across the seven acre Site; and it was not clear whether, in any event, the investigations would have been able to detect CJD in the soil.

Although one of the planning conditions required a written remediation statement to be agreed, the Council had been advised that further investigation of remediation options would be needed – at this stage it was not clear what that remediation might look like. In the Court’s view, this meant that the SoS could not make an informed judgement as to whether, or to what extent, BSE-related contamination could be remediated. Therefore, the SoS’ conclusion was based on an assumption; namely, that the (as yet unidentified) measures could successfully address the contamination and potential health risks.

Relying on this assumption constituted an error of law, following the principle established in the Gillespie case (Gillespie v First Secretary of State [2002] EWCA Civ 400). In that case, the Court of Appeal considered the approach to screening in the context of uncertain mitigation and remediation measures. The Court stated that:

When making the screening decision, these contingencies must be considered and it cannot be assumed that at each stage a favourable and satisfactory result will be achieved. There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached.

Although it is not essential that all uncertainties regarding remediation are resolved, in Swire the likely effectiveness of remediation could not be predicted with confidence. Furthermore, as residential use of the Site was proposed, a higher standard of remediation would be required. Mrs Justice Lang concluded that the same error had been made here as in the Gillespie case. A significant error of law had arisen in the decision-making process – therefore the decision that an EIA was not required was quashed.

Practical Takeaways

The Swire case offers useful guidance on the approach which should be taken towards screening when there are uncertainties surrounding the effect of a development on the environment.

Firstly, screening authorities remain entitled to take proposals for mitigation or remediation into account when determining if an EIA is required. However, these proposals need to be properly considered so that their effectiveness can be predicted with confidence.

Secondly, any conclusion about whether or not a development is likely to have significant effects on the environmental must be supported by adequate evidence. For developers, this means identifying and assessing any mitigation or remediation measures potentially required to address environmental impacts. For screening authorities, this means properly considering those measures when making the screening decision. It will not be appropriate to simply assume that those measures will successfully address the detrimental impact of a development on the environment, especially in the context of complex sites where the outcome is rather uncertain or residential sites where high standards of remediation are required.

Thirdly, where there is doubt about whether a project is EIA development, then the precautionary principle should be applied. The judge reiterated the approach taken by the Supreme Court in Champion v North Norfolk District Council [2015] UKSC 52, in which Lord Carnwath explained that “application of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA”. Indeed, the High Court in Swire noted that bypassing EIA in cases of material doubt could subvert the entire purpose of the EIA regime. Therefore, developers should consider whether, in cases of material doubt, the risk of proceeding without a full EIA might outweigh the perceived costs of going through the EIA process. Ultimately, the less risky approach for projects where there remains material doubt at the screening stage may be to carry out a robust scoping followed by the full EIA.