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Supreme Court to hear case on appropriate assessment, EIA and mitigation

Supreme Court Main Entrance 03521C press office supplied 146x219The Supreme Court will next week hear a key case on appropriate assessments, EIA assessments and mitigation measures.

The background to the case of R (on the application of Champion) v North Norfolk District Council and another was that on 1 October 2009 Crisp Malting Group (CMG) applied to the council for planning permission for a development including a lorry park and barley silos.

At that time it was acknowledged that there was a potential for pollutants to be released from the development into the surrounding environment and, in particular, the River Wensum (a Site of Special Scientific Interest and a Special Area of Conservation).

A number of environmental concerns and corresponding mitigation measures were raised with the council throughout a prolonged planning process.

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North Norfolk’s development control committee ultimately concluded that, in light of the proposed mitigation measures, the development was not likely to have a significant impact on the environment such that no Appropriate Assessment or EIA [Environmental Impact Assessment] procedure was required under the relevant European environmental directives.

Planning consent was granted on 13 September 2011. The consent was subject to on-going monitoring – and, if necessary, restoration – of the water quality entering the river, so as to avoid harm to the SSSI and the SAC.

Deputy Judge James Dingemans QC quashed the grant of planning consent in the High Court on the basis that the council could not rationally both consider there to be no relevant risk of a significant impact on the environment and at the same time impose a procedure for monitoring water quality.

The Court of Appeal overturned the deputy judge's order in December 2013, with Lord Justice Richards concluding that the High Court judge had conflated distinct legal tests.

Lord Justice Richards concluded that there was no inconsistency between the two positions adopted by the council.

The key issues are:

  • Whether the council could properly conclude that an Appropriate Assessment (for the purposes of the Habitats Directive) or an Environmental Impact Assessment (for the purposes of the EIA Directive) was not required in light of the process leading up to that decision.
  • Whether it is permissible to take into account proposed mitigation measures when assessing whether a project is likely to have a significant impact on the environment for the purpose of a screening decision under the Habitats Directive and/or EIA Directive.

A five-justice panel – comprising Lord Neuberger, Lord Mance, Lord Clarke, Lord Carnwath and Lord Toulson – will hear the case on 23 June.

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