R (on the application of Champion) v North Norfolk District Council and another
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Neuberger,Lord Mance,Lord Clarke,Lord Toulson |
| Judgment Date | 22 July 2015 |
| Neutral Citation | [2015] UKSC 52 |
| Date | 22 July 2015 |
| Court | Supreme Court |
[2015] UKSC 52
Lord Neuberger, President
Lord Mance
Lord Clarke
Lord Carnwath
Lord Toulson
Appellant
Richard Buxton
(Instructed by Richard Buxton Environmental and Public Law)
Respondents
C Lockhart-Mummery QC Zack Simons
(Instructed by Howes Percival)
Heard on 23 June 2015
(with whom Lord Neuberger, Lord Mance, Lord ClarkeandLord Toulsonagree)
The appeal concerns a proposed development by Crisp Maltings Group Ltd ("CMGL") at their Great Ryburgh plant in Norfolk, in the area of the North Norfolk District Council ("the council"). It was opposed by the appellant, Mr Matthew Champion, a member of the Ryburgh Village Action Group. The proposal involved the erection of two silos for 3,000 tons of barley, and the construction of a lorry park with wash bay and ancillary facilities, on a site close to the River Wensum. Permission was granted by the council, following consultation with the relevant statutory bodies, notably Natural England (NE) and the Environment Agency ( EA), on 13 September 2011.
The river is a Special Area of Conservation, part of the EU Natura 2000 network of sites, and thus entitled to special protection as a "European site" under the EU Habitats Directive (Directive 97/62/EC), which is given effect in this country by the Conservation and Habitats Species Regulations 2010 ("the Habitats Regulations"). The river was described in one council report as –
"… probably the best whole river of its type in nature conservation terms, with a total of over 100 species of plants, a rich invertebrate fauna and a relatively natural corridor. The river supports an abundant and diverse invertebrate fauna including the native freshwater crayfish (a European protected species) as well as a good mixed fishery."
The appellant's complaint, in short, is that the council failed to comply with the procedures required by the regulations governing Environmental Impact Assessment (EIA) and "appropriate assessment", respectively under EIA and Habitats Regulations.
Directive 2011/92 /EU ("the EIA Directive") provides the framework for the national regulations governing environmental assessment. The preamble (para (2)) states that Union policy is based on "the precautionary principle" and that effects on the environment should be taken into account "at the earliest possible stage in all the technical planning and decision-making processes". By article 2 the EIA Directive requires member states to adopt all measures necessary to ensure that projects "likely to have a significant effect on the environment" are subject to environmental impact assessment before consent is given. The projects to which it applies are those defined in article 4 and annexes I and II. Projects in annex I require assessment in any event; those in annex II (which covers the present project) require a "determination" by the "competent authority" whether it is likely to have a significant effect, so as to require assessment (article 4(2)). The competent authority is the authority designated for that purpose by the member state (article 1(f)). For projects subject to assessment member states are required to adopt the measures necessary to ensure that the developer supplies in an appropriate form the information specified in annex IV, which includes details of the project and its anticipated effects, and the measures proposed to prevent or reduce adverse effects (article 5). That information is to be made available to the public likely to be affected, who must be given "early and effective opportunities" to participate in the decision-making process (article 6).
In the United Kingdom the environmental assessment procedure is integrated into the procedures for granting planning permission under the planning Acts. The current regulations are the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2011. It will be convenient to refer to these ("the EIA Regulations"), although they replaced the 1999 Regulations which were in force at the time of the present application. The Regulations do not follow precisely the form of the EIA Directive, but there is no suggestion of any failure of implementation. The starting point is the expression "EIA development", defined by reference to Schedules 1 and 2 (corresponding to annexes I and II of the EIA Directive).
Although the Regulations do not in terms "designate" a "competent authority", it is clear at least by implication that this role is given in the first instance to the local planning authority, which is given the task of determining whether Schedule 2 development is EIA development (see eg regulation 4(6)).
The mechanism by which the authority determines whether assessment is required is referred to in the Regulations as "screening" (not an expression used in the EIA Directive). A "screening opinion" may be given in response to a specific request by the developer (regulation 5), or, in various circumstances where an application is received by the authority for development which appears to require EIA and is not accompanied by an environmental statement (regulations 7–10).
Regulation 3 prohibits the grant of consent for EIA development without consideration of the "environmental information", defined (by regulation 2) to include the "environmental statement" and any representations duly made about the environmental effects of the development. The contents of the environmental statement are defined by reference to Schedule 4 (which corresponds to annex IV of the EIA Directive, and like it includes a reference to measures envisaged to prevent, reduce or offset any significant adverse effects on the environment).
The environmental statement, in proper form, is central to this process. In Berkeley v Secretary of State for the Environment [2001] 2 AC 603, Lord Hoffmann rejected the submission that it was enough if the relevant information was available to the public in the various documents provided for inspection:
"… I do not accept that this paper chase can be treated as the equivalent of an environmental statement. In the first place, I do not think it complies with the terms of the Directive. The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language. It is true that article 6(3) gives member states a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted. But I do not think it allows member states to treat a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the annex III information which should have been provided by the developer." (p 617D-F)
Council Directive 92/43/EEC ("the Habitats Directive") provides for the establishment of a European network of special areas of conservation under the title Natura 2000. Article 6 imposes duties for the protection of such sites. By article 6(3)
"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
Article 6(4) provides for limited exceptions, but only "for imperative reasons of overriding public interest, including those of a social or economic nature".
The relevant implementing regulations are the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations"). Regulation 61 reproduces the effect of article 6(3). A "competent authority", before deciding to give consent for a project which is "likely to have a significant effect on a European site … (either alone or in combination with other plans or projects)" must make "an appropriate assessment of the implications for that site in view of that site's conservation objectives". It may agree to the project "only after having ascertained that it will not adversely affect the integrity of the European site", having regard to "any conditions or restrictions" subject to which they propose that the consent should be given.
Authoritative guidance on the interpretation of article 6(3) has been given by the Court of Justice of the European Union ("CJEU") in (Case C-127/02) Waddenzee [2006] 2 CMLR 683 (relating to a proposal for mechanical cockle-fishing in the Waddenzee Special Protection Area). There is an elaborate analysis of the concept of appropriate assessment, taking account of the different language versions, in the opinion of Advocate General Kokott (paras 95–111). In its judgment the court made clear that the article set a low threshold for likely significant effects:
"41. … the triggering of the environmental protection mechanism provided for in article 6(3) of the Habitats Directive does not...
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