Friday, 7 August 2015

Lack of EIA not fatal to planning permission

There has been a trend in recent years for amenity groups and other third party objectors to challenge procedural irregularities in an effort to overturn planning decisions to which they were opposed. Where the challenge appears to have been of a pedantically ‘technical’ nature, the courts have not hesitated to dismiss such challenges, on the grounds that there was no substantive unfairness or no breach of procedure of sufficient significance as to amount to a legal error that would justify quashing the planning decision. In addition, there are occasionally cases where the legal objection is made out, but where it is still not appropriate, in the court’s view, that the planning decision should be quashed.

It is a well established principle that the courts have a discretion as to whether (and, if so, in what form) relief should be granted where a legal challenge to a planning decision, or other administrative decision or action, is made out. There are various factors that the court will take into account in deciding whether to grant relief in such cases, such as whether the decision under challenge has substantially prejudiced the claimant, and whether there is a realistic prospect that, upon the matter in question being redetermined by the decision-maker, there is any realistic prospect that a different decision might be reached.

It was the latter point that led the Supreme Court, in R (Champion) v North Norfolk District Council and another [2015] UKSC 52 on 22 July 2015 to dismiss an appeal aimed at securing the quashing of a planning permission for 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. In this case, there was no disagreement 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.

However, having found a legal defect in the procedure leading to the grant of planning permission, it was necessary for the court to consider the consequences in terms of any remedy. Following the decision of the Supreme Court in Walton v Scottish Ministers [2012] UKSC 44, [2013] PTSR 51, it is 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 in practice to enjoy the rights conferred by European legislation [by making representations and by having all the relevant issues fully considered by the decision-maker], and there has been no substantial prejudice.

The subsequent judgment of the Court of Justice of the European Union in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) [2014] PTSR 311 confirmed that not every procedural defect will necessarily have consequences that can possibly affect the legality of a planning decision and it cannot, therefore, be considered to impair the rights of the party pleading it. This was consistent with the decision of the Supreme Court in Walton.

The court therefore dismissed the appeal. Although the proposal should have been subject to assessment under the EIA Regulations, that failure did not in the event prevent the fullest possible investigation of the proposal and the involvement of the public. There was no reason to think that a different process would have resulted in a different decision, and the claimant’s interests had not been prejudiced.

It should not be assumed from this judgment that an incorrect screening opinion and the consequent lack of an EIA can be lightly overlooked. Clearly there are many cases in which such a defect would be fatal to the grant of planning permission. The judgment 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. The issue of prejudice (not merely to the challenging party, of course, but also to the wider interests that they are seeking to protect) will be a determining factor in the court’s decision as to whether or not they should exercise their discretion to quash the planning permission or to grant such other relief as the claimant may be seeking.

One other point to emerge from this judgment is that the court considering an application for permission to bring judicial review proceedings should take into account the likelihood of relief being granted, even if a legal error were to be clearly established. So permission to bring such cases in future may be refused at the outset if the view is taken that, upon a full hearing of the case, relief is unlikely to be granted. I foresee some difficulties arising from this suggestion, and it will be interesting to see how this point is dealt with if or when it arises in future permission applications under CPR Part 54.


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