Bar still rising for EIA challenges

There has been a steady flow of cases winding back the scope for legal challenges on the grounds of defective Environmental Impact Assessment (EIA).  The recent judgment in R (Bishop’s Stortford Civic Federation) v East Hertfordshire District Council [2014] EWHC 348 Admin is the latest.

The case concerned Henderson’s £105m retail and residential proposals for local authority land at Bishop Stortford.  The Civic Federation challenged the grant of permission on several grounds, including that the development control committee’s August 2011 approval was improperly influenced by the speech of a executive member responsible for the council’s finances, who had been instrumental in negotiating a confidential deal with Henderson.  The Court rejected the claim that his intervention made it impossible for the committee to ignore the council’s vested financial interest in the development and take a decision based on purely planning grounds. The judge notably ‘deplored’ the forensic analysis of the political debate relied on by the claimants, which risked undermining the democratic process.

The claim also related to updated EIA material submitted by Henderson but not publicised by the Council. The Environmental Statement (ES) included a substantial planning policy section and the applicant felt that it was necessary to submit a policy addendum to address the changes arising from final publication of the NPPF.  The EIA Regulations require substantive updates to an ES to be publicised (either as ‘further information’ – requested by the planning authority – or ‘other information’ – submitted voluntarily). This did not happen and the objectors sought a quashing order on the basis of a technical breach.

The court held that the submission of an ES Addendum because of the adoption of the redevelopmentNPPF did not trigger the requirement because it was not substantive information.

Importantly, the judge also held that, even if there had been a breach of the EIA Regulations, he would have exercised the discretion not to quash the permission given the technical nature of the breach and the lack of significant prejudice to the claimant. Although not part of the formal judgment, this confirms the willingness of the High Court to move away from the more restricted position adopted since Berkeley v Secretary of State for the Environment (No.1) [2001] on the availability of the discretion where there are breaches of EIA requirements, towards the more flexible position put forward by Lord Carnwarth in the Supreme Court judgment in Walton v The Scottish Ministers [2012] UKSC 44.

As well as highlighting the need to limit legalistic nit-picking over what is said during planning committee debates (in contrast to the specific resolutions resulting), the case also highlights the level of unnecessary policy information now routinely included in ES work and the potential dangers of doing so where updates then become necessary, which themselves become an issue requiring further publicity. It also underlines a judicial reluctance to grant a remedy for technical ES defects where in the real world they cause no harm.

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Roy Pinnock

About Roy Pinnock

Roy is a partner in the Planning and Public Law team, bringing his experience of working on regeneration projects within local government and as a consultant to his legal practice.

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