Champion, R (on the application of) v North Norfolk District Council & Ors

Whether an Environmental Impact Assessment or an Appropriate Assessment is required is distinct from whether precautionary planning conditions should be imposed. Proposed remedial measures may be considered when assessing likely significant effects, but conditions do not automatically become a substitute for the assessment process. Monitoring or remediation conditions may be imposed for reassurance even where significant effects are not considered likely. An early defective screening opinion does not invalidate the later decision if the authority ultimately considers the relevant material and makes the required assessment. Screening must encompass relevant environmental and cumulative effects, although minor matters need not independently require an assessment.

North Norfolk District Council granted Crisp Malting Group Limited planning permission for silos, a lorry park and related works near the River Wensum, an SSSI and SAC. The Council decided that neither an Environmental Impact Assessment nor an Appropriate Assessment was required, but imposed conditions requiring water-quality monitoring and remedial action.

On judicial review, the deputy High Court judge held that those decisions were irrationally inconsistent and quashed the permission in [2013] EWHC 1065 (Admin). The Council and Crisp Malting Group appealed. The central issues were whether the conditions necessarily implied a likelihood of significant environmental effects and whether the Committee had sufficient information to make a lawful assessment of the relevant environmental effects.

The appeals were allowed. The Court of Appeal set aside the parts of the deputy judge’s order allowing the judicial review claim and quashing the planning permission.

1. The questions whether an Environmental Impact Assessment or an Appropriate Assessment was required, and whether planning conditions should be imposed, were distinct and sequential. The low threshold for likely significant effects under the EIA and Habitats regimes did not mean that monitoring conditions necessarily evidenced such a likelihood. Proposed remedial measures could be considered where their nature, availability and effectiveness were sufficiently established. A condition could also operate as a precautionary measure for reassurance or to address a situation below the threshold of likely significant effects. This approach was consistent with Gillespie v First Secretary of State [2003] EWCA Civ 400, R (Jones) v Mansfield District Council [2003] EWCA Civ 1408 and Feeney v Secretary of State for Transport [2013] EWHC 1238 (Admin).
2. The requirement that conditions should be necessary was, strictly, a policy requirement rather than a statutory precondition to their validity. Conditions 23 and 24 dealt with monitoring and possible deterioration in water quality. Nothing in the minutes showed that they had been imposed because the Committee considered significant effects likely. Their inclusion could therefore rationally coexist with the conclusion that no assessment was required.
3. The defective initial screening opinion did not invalidate the later decision-making process. The ultimate question was whether permission had been granted without an EIA in circumstances where one was required, as explained in R (Berky) v Newport City Council [2012] EWCA Civ 378. Later flood-risk material, consultation and Natural England’s final view enabled the Committee to make the necessary assessment.
4. The Committee’s consideration was not confined unlawfully to the designated sites. The reports and oral presentation addressed other matters, including landscape, lighting, highways, noise and visual amenity. Relevant environmental and cumulative effects had been sufficiently brought into account, and the conclusion that no EIA or Appropriate Assessment was required was reasonably open to the Committee.
5. The Court agreed that the conditions could be taken into account in assessing environmental effects and that the Council’s decision was rational. The matter was not remitted; consequential matters were left to counsel to address in writing.

• Court of Appeal (Civil Division) — appeals by North Norfolk District Council and Crisp Malting Group Limited allowed; the order quashing the planning permission was set aside.
• High Court of Justice, Administrative Court — in [2013] EWHC 1065 (Admin), the claim for judicial review was allowed and the planning permission was quashed.