Champion v North Norfolk District Council & Anor

When deciding whether an environmental impact assessment or Habitats appropriate assessment is required, the decision-maker may take account of proposed mitigation measures. The relevant question remains whether a significant effect or risk of such an effect can properly be excluded on the available objective information. The assessment decision is for the relevant authority, subject to review on Wednesbury grounds.

A planning authority acts irrationally if it simultaneously concludes that there is no relevant risk requiring assessment and imposes conditions designed to monitor and remedy that same risk. The permission must then be quashed and the authority must reconsider the issue consistently.

The claimant challenged the grant of planning permission by North Norfolk District Council for silos, a lorry park and associated works near the River Wensum SAC and SSSI. He also challenged Natural England’s consultation response advising that no Habitats appropriate assessment was required.

The claims concerned whether the development created a sufficient risk of significant environmental effects to trigger an environmental impact assessment or appropriate assessment, whether the Council’s Development Control Committee had power to make that decision, and whether the Council’s decision was internally inconsistent because it imposed water-quality monitoring and remediation conditions.

1. Power to decide assessment issues. The Development Control Committee had power under the Local Government Act 2000 and the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 to decide whether an environmental impact assessment or Habitats appropriate assessment was required. That decision was conducive or incidental to determining the planning application.
2. Applicable thresholds. The Council was entitled to consider proposed mitigation when deciding whether an assessment was triggered. The Habitats assessment question was whether, on objective information, it could be excluded that the project would have a significant effect on the European site. The EIA question involved whether there was a serious possibility or real risk of significant environmental effects. The decision was for the relevant authority, subject to irrationality review.
3. Internal inconsistency. The Committee’s conclusion that there was no relevant risk of pollutants entering the River Wensum was rationally available on the evidence. However, its decision to impose conditions 23 and 24, requiring water-quality monitoring and remedial steps if deterioration occurred, indicated that it considered such a risk existed. The two positions could not rationally be adopted together.
4. Disposition of the Council claim. The Council’s decision dated 13 September 2011 was quashed. The relevant decision-maker had to reconsider whether there was a relevant risk. If there was no risk, permission could be granted but conditions 23 and 24 could not be imposed. If there was such a risk, an appropriate assessment and an EIA had to be obtained. The question whether noise, light or other effects independently required assessment was not established.
5. Natural England claim. Natural England had applied the correct statutory standard. Its use of the statutory wording and reference to relevant guidance showed that it had understood the approach in Landelijike Waddenzee v Staatsecretaris can Landbouw. The claim against Natural England was dismissed. The judge also observed that unnecessary duplication of proceedings should be avoided in affordable environmental litigation.