Legal brief: A legal obstacle course

9th August 2013


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IEMA

Stephen Tromans argues that two recent court judgments have created a conundrum for planning authorities

The recent High Court decision in R (Champion) v North Norfolk District Council [2013] EWHC 1065 (Admin) illustrates something of a trap for both developers and planning authorities.

The circumstances were quite mundane – a proposal for an agricultural store for barley and associated lorry park. The site was, however, 500 metres away from the River Wensum, which is designated as a site of special scientific interest and a European special area of conservation (SAC).

There were concerns about the risk of polluted runoff entering the river via land drains, during the construction and operation of the facility. Mitigation measures were included and adapted during the consultation. However, no environmental assessment was required and no “appropriate” assessment of the nature conservation implications was carried out.

The nub of the successful challenge to planning permission for the development was that the approach adopted by the council to assess the planning application was inconsistent and irrational.

Although it maintained there was no significant risk that pollutants would enter the river, the council had imposed a number of conditions in the planning permission requiring river water quality to be monitored and, if necessary, steps to be taken to improve water quality if it deteriorated as a result of activities from the proposed development.

The judge quashed the planning decision because it was not rationally possible to impose conditions which pointed to a risk of contamination but, at the same time, adopt the view that there was no relevant risk of pollution.

Logical as it is, the decision feels wrong in practical terms. Conditions of the sort imposed by the council in this case are a useful fallback in the event that a risk, which, while unlikely, comes about. The fact that I insure my house against being struck by lightning does not necessarily imply that I think this is likely.

In Feeney v Secretary of state for transport [2013] EWHC 1238, however, the court took a different attitude from the court in Champion. The case concerned a challenge to an order authorising a new length of railway line, which passed near a lowland hay meadow SAC. Objectors argued there was a risk of nitrogen oxides from the project affecting that habitat. On the advice of Natural England, a condition was imposed requiring further survey work, and then implementation of mitigating measures if necessary.

The inspector and secretary of state both concluded that there would be no likely significant effect on the SAC. That decision was challenged on the ground that the existence of the condition showed that the secretary of state could not have been certain there would be no possible significant adverse effects.

Justice Ouseley found that the decision-maker was obliged to take account of such mitigation measures as part of the screening process, and that the purpose of the condition was to deal with the range of uncertainty between no harm at all and harm that was unlikely.

In other words, it was not irrational to conclude on the basis of baseline predictive data that there was no likelihood of significant effects, but to continue to monitor the actual operation to ascertain whether it gave rise to effects and, if necessary, implement mitigation measures. The judge referred to the evidence by Natural England that there was no reason to believe that the tried and tested management measures proposed would not be effective.

There is obviously some element of tension between the two decisions. However, Feeney seems to align better with the realities of assessing projects. There can be a good degree of certainty that proposed mitigation measures would work, but still a rationale for post-implementation monitoring and mitigation if necessary.

The fact is that, until a project is built and operational, there is going to be some degree of uncertainty about its effects.

The conditions imposed in Feeney are a pragmatic solution, and one that accords with good practice. To place authorities in a dilemma of not being able to impose such conditions for fear of being held to have acted irrationally seems to turn the process into a “legal obstacle course” which the courts have said it should not be.

This is of course subject to the caveat that later surveys cannot legitimately be used as a means of circumventing genuine uncertainty as to the effects of a project.


R (Champion) v North Norfolk District Council

In granting permission for an agricultural storage facility close to a site of special scientific interest (SSSI), North Norfolk District Council, following advice from Natural England, concluded an environmental impact assessment and a “habitats appropriate assessment” were not required since there was no risk of contamination.

The council, nonetheless, imposed a condition on the planning permission, requiring water quality at the SSSI to be monitored and measures for remediation implemented if the river became contaminated. The High Court quashed the planning permission, describing the council’s approach as “inconsistent” and “irrational”.

Feeney v Secretary of state for transport

Court ruled that the planning condition included in the consent for work on a railway line was sufficient to prevent future damage to a nearby special area of conservation. According to the ruling, the purpose of the condition was to assess and then eliminate any uncertainty surrounding the impact of the operation of the railway once the construction work was completed.


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