Searching for the real meaning

Stephen Tromans looks at two recent court decisions and whether they provide clarification of the meaning of the word "likely" in environmental impact assessments

The system of environmental impact assessment (EIA) depends on judgments as to whether significant environmental effects are likely. Perhaps surprisingly, until recently no case has given much thought as to what the word “likely” means in this context. Increasingly, it seems, a very cautious approach is being taken in screening and in decisions as to the effects that need to be covered in environmental statements – no doubt for defensive reasons. Now, two cases dealing with that topic have come along together.

The Habitats Directive

The first is the decision of the Court of Appeal in R (An Taisce – the National Trust for Ireland) v Secretary of state for energy and climate change [2014] EWCA Civ 1111. That was an unsuccessful challenge to an order granting development consent for the new nuclear reactor at Hinkley Point C in Somerset. It was argued that the UK government should have carried out transboundary consultation with Ireland, on the basis that the project could have likely significant effects there. The government’s view was that the probability of such impacts was too low to justify this.

The court noted that the Court of Justice of the European Union (ECJ) had not ruled on the issue, nor were there any binding domestic authorities. It rejected, importantly, an attempt to draw a parallel with the word “likely” in article 6(3) of the Habitats Directive, where the ECJ has given it an extensive, precautionary meaning, whereby a risk exists if it cannot be excluded on the basis of objective information. This approach is not appropriate to the EIA Directive because the two measures have different purposes.

The habitats regime is designed to achieve a very high level of protection for special areas of conservation, whereas the EIA Directive has a very broad scope. Carrying across the habitats meaning would, Lord Justice Sullivan said, mean that more projects would be subject to EIA and environmental statements, which would become even lengthier than they are now. Not a good outcome.

Cumulative assessment

In the second case, Commercial Estates Group Ltd v Secretary of state for communities and local government [2014] EWHC 3089, a developer sought to challenge its opponent’s planning permission on the basis that there had been a defective screening process. The claimant argued that there should have been cumulative assessment of the development, with further development of land allocated as suitable in the plan for development over the next 10 years.

EU guidance on cumulative effects refers to the inclusion of past, present or reasonably foreseeable actions. The claimant said this should mean “a real risk which would occur to the mind of a reasonable man … and which he would not brush aside as far-fetched”, relying on what is “reasonably foreseeable” in the tort of negligence. The judge rejected that approach. While not attempting to formulate the test, the judge was confident the threshold was significantly higher than that. Ultimately it was a matter for the judgment of the decision maker, in this case the secretary of state.

European decision?

Both decisions show the general reluctance of the courts to extend the reach of EIA and to interfere with decisions as to what are, in essence, matters of judgment by the decision maker. It may be that we will have European authority on these points at some stage and it will be interesting to compare how the European judges approach it.