Environmental Impact Procedures: No Shortcuts Allowed, Rules Court

October 26, 2015

Environmental Impact Procedures: No Shortcuts Allowed, Rules Court

When a proposal for a development that included a lorry park and two silos was made that had the potential to lead to pollution of a river which is in a special conservation area, the expectation that there might be opposition proved to be well founded.

The planning application included a flood risk assessment (FRA), which concluded that there was a risk that surface runoff from the site would pollute the river. Having consulted with the relevant statutory bodies, the local authority issued a 'screening opinion' stating that a full Environmental Impact Assessment (EIA) was not necessary. Two further FRAs and an ecological risk assessment were subsequently prepared and the statutory bodies withdrew their objections to the development.

The council decided to give delegated powers to its planning officers to approve the development subject to conditions, a decision that led to local people raising objections and arguing that an EIA should be carried out.

The application was referred back to committee and further input was invited from the objectors, but the claimant made no comments at that stage. The council's planning officers presented a report concluding that an EIA was not required and the committee approved the application subject to conditions which included a requirement for environmental monitoring.

In the end, the development dispute went all the way to the Supreme Court, which ruled that the original decision of the local authority that there was no 'relevant risk' requiring an EIA to be carried out was wrong. The failure to treat the proposal as one requiring an EIA was a procedural irregularity that could not be rectified by addressing the potential adverse effects in other ways and was not 'cured' by the final decision. However, in this case, the Court decided to exercise its power to refuse relief as the failure had not prevented a full investigation of the proposal or the involvement of the general public, nor was there any reason to believe that the outcome would have been any different had the decision making process followed a different course.