Environmental impact assessment and contamination screening

The High Court decision in R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin) provides a useful example of the importance of adequate information to underpin screening decisions when considering planning applications for the development of contaminated land. Here the developer applied for outline planning permission for residential development of a site used as a saw-mill and later as an animal rendering plant. During the 1990s, it had been one of four sites in the UK licensed by DEFRA to dispose of cattle infected with bovine spongiform encephalopathy, which resulted in the outbreak of Creutzfeldt-Jakob disease (CJD) in humans. It had been disused for more than ten years. However, its permit for animal carcass rendering was still in force.

Lang J quashed the permission on the basis of a defective screening process. Applying the principles established in the case law, she held that a screening authority must have sufficient evidence of the potential adverse environmental impacts and the availability and effectiveness of the proposed remedial measures, to make an informed judgment that the development would not be likely to have significant effects on the environment, and that therefore no EIA is required. In this case she noted that there was very limited evidence as to the presence and nature of contamination from BSE-infected carcasses at the site; as to the hazards which any such contamination might present for the homes and gardens to be constructed on the site; and as to any safe and effective methods of detecting, managing and eliminating any such contamination and hazards. The developer had commissioned risk assessment and remediation reports which were submitted to the local authority in support of the application for planning permission. However, none of these reports made any reference to the site’s former use for BSE-infected animal carcass disposal from 1998, nor any risk of contamination from such use. Indeed, the authors of the reports were not even aware of this former use. The judge said:

“In my view, the reports were very inadequate in this regard. The information was available in the public domain, the BSE crisis had occurred within living memory, and it was well-known in the locality, as demonstrated by the objections made by the Claimant and others to the planning application.”

The judge also noted that the absence of evidence of BSE-related contamination in the Ground Investigation and Generic Risk Assessment undertaken for the developer “was far from conclusive”. It was a “basic, initial document” which itself acknowledged that it “is by no means exhaustive and has been devised to provide an initial indication of potential ground contamination”. The summary in the report said that “a comprehensive site investigation and risk assessment would ultimately be required”. The entire property was more than 7 acres in size, and only 8 trial pits were assessed. Moreover, it was not confirmed that BSE-related contamination could or would have been identified by the tests which were carried out for the other contamination risks which the reports had identified. The Council’s screening opinion accepted the potential risk of BSE-related contamination of the site, both for workers during the construction process and future residents. It stated that “[s]pecialist advice will be sought to consider the remediation of Prions associated with CJD/BSE”. The Council’s approach was to impose a series of stringent environmental conditions to ensure that development would not begin until a scheme to deal with contamination of land and groundwater had been submitted and approved by the local planning authority and until measures approved in the scheme had been implemented. Although the Defendant Secretary of State had correctly recognised that the issue of BSE-related contamination required further investigation, assessment, and remediation of any contamination found, he then applied the wrong legal test and thus committed the errors identified in Gillespie v First Secretary of State [2002] EWCA Civ 400, at [41] and [46]. See per Laws LJ at para. 46 in that case:

“46. …..Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA. If then the Secretary of State were to decline to conduct an EIA, as it seems to me he would pre-empt the very form of enquiry contemplated by the Directive and Regulations; and to that extent he would frustrate the purpose of the legislation.”

As Lang J stated (para. 106):

“There was a lack of any expert evidence and risk assessment on the nature of any BSE-related contamination at the Site, and any hazards it might present to human health. The measures which might be required to remediate any such contamination and hazards had not been identified. This was a difficult and novel problem for all parties to address. It was acknowledged by the Council in its screening opinion, acting on the advice of the Environmental Health Practitioner, that specialist advice would be needed to consider the remediation of prions associated with CJD/BSE. Therefore condition 21 merely referred to the requirement that a written method statement for the remediation of land and/or groundwater would have to be agreed by the Council without any party knowing what the remediation for BSE-related infection might comprise. The Defendant adopted the Council’s approach in his screening opinion. But because of the lack of expert evidence, the Defendant was simply not in a position to make an “informed judgment” (per Dyson LJ in Jones, at [39]) as to whether, or to what extent, any proposed remedial measures could or would remediate any BSE-related contamination. It follows that when the Defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption. As Pill LJ said in Gillespie, at [41], “the test applied was not the correct one. The error was in the assumption that the investigations and works contemplated in condition VI could be treated, at the time of the screening decision, as having had a successful outcome”. Whilst “not all uncertainties have to be resolved” (per Dyson LJ in Jones at [39]), on the facts this case was not one “where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence” (per Pill LJ at [34]). As the Site was proposed for residential housing, a higher standard of remediation would be required than if it were intended to adapt it for an industrial use, or merely to decontaminate it and return it to woodland (some sites will never be suitable for residential housing, because of industrial contamination).”

In conclusion, Lang J considered that the Defendant had made the same error as in the Gillespie case, and thus his decision that EIA was not required was vitiated by a legal error. The Defendant’s decision in this case had important consequences – it is not merely a technical or procedural error – and therefore it had to be quashed.

Stephen Tromans QC and Adam Boukraa are barristers at 39 Essex Chambers.