Experts from Lexis PSL on a High Court ruling that it was "irrational" for a local authority to decide an EIA was unnecessary and then impose planning conditions anticipating contamination at the site
In Champion v North Norfolk District Council and another  EWHC 1065 (Admin) the court quashed a planning permission on the basis that it was not rationally possible to impose planning conditions pointing to a risk of contamination but, at the same time, decide that neither an environmental impact assessment (EIA) nor a habitats assessment were required as there was no relevant risk of pollution.
The local authority had granted planning permission for a development close to the River Wensum, which is a site of special scientific interest. After consulting with Natural England, the authority concluded that no EIA or habitats appropriate assessment were required because the development was not likely to have a significant effect on the environment.
However, the authority imposed planning conditions that required monitoring of water quality and measures for remediation should contamination occur.
When is an EIA/habitats appropriate assessment required?
Under the Habitats Directive (92/43/EEC), which is transposed by the Habitats Regulations 2010, a development likely to have a significant effect on the site, either individually or in combination with other plans or projects, must be subject to appropriate assessment of its implications in view of the site’s conservation objectives – a “habitats appropriate assessment”.
The development can only be agreed by the competent national authority after it has ascertained the integrity of the site will not be adversely affected. Prior to granting permission for a project likely to have a significant effect on a European site the authority must carry out a habitats appropriate assessment.
Article 2(1) of Directive 85/337/EEC (the EIA Directive), meanwhile, requires an EIA to be carried out by the competent authority for certain projects likely to have significant effects on the environment, before consent is given.
An irrational decision
In Champion the High Court held that it was “inconsistent and irrational” of the council to decide there was no need for an EIA or habitats appropriate assessment and then impose conditions providing for remediation in the event of contamination.
The conditions suggested that there was a risk that pollutants could enter the river. But the decision that no EIA or habitats assessment was required can only be taken where it has been decided there was no relevant risk.
The court ruled that the authority could not rationally adopt both positions at the same time and the decision to grant permission with conditions was quashed.
North Norfolk District Council must now reconsider its decision and if it concludes that there is a risk, it will have to require a habitats assessment and an EIA.
Champion confirms that wherever there is a risk of contamination having a significant effect on the environment or a European site, the planning authority must require an EIA or a habitats assessment. Authorities cannot simply impose planning conditions to deal with the risk.
EIA practitioners must work out whether this is likely to be an issue at the outset of any development and factor in the time and costs of carrying out such assessments.
George Hobson and Hayley Tam, LexisPSL Environment