UKSC 52
On appeal from:  EWCA Civ 1657
R (on the application of Champion) (Appellant) v North Norfolk District Council and another (Respondents)
Lord Neuberger, President
JUDGMENT GIVEN ON
Heard on 23 June 2015
(Instructed by Richard Buxton Environmental and Public Law)
C Lockhart-Mummery QC
(Instructed by Howes Percival)
LORD CARNWATH: (with whom Lord Neuberger, Lord Mance, Lord Clarke and Lord Toulson agree)
"... probably the best whole river of its type in nature conservation terms, with a total of over 100 species of plants, a rich invertebrate fauna and a relatively natural corridor. The river supports an abundant and diverse invertebrate fauna including the native freshwater crayfish (a European protected species) as well as a good mixed fishery."
Environmental Impact Assessment
" I do not accept that this paper chase can be treated as the equivalent of an environmental statement. In the first place, I do not think it complies with the terms of the Directive. The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language. It is true that article 6(3) gives member states a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted. But I do not think it allows member states to treat a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the annex III information which should have been provided by the developer." (p 617D-F)
"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
Article 6(4) provides for limited exceptions, but only "for imperative reasons of overriding public interest, including those of a social or economic nature".
"41. the triggering of the environmental protection mechanism provided for in article 6(3) of the Habitats Directive does not presume - as is, moreover, clear from the guidelines for interpreting that article drawn up by the Commission, entitled 'Managing Natura 2000 Sites: The provisions of article 6 of the Habitats Directive (92/43/EEC)' - that the plan or project considered definitely has significant effects on the site concerned but follows from the mere probability that such an effect attaches to that plan or project."
The court noted that article 6(3) adopts a test "essentially similar" to the corresponding test under the EIA Directive. (para 42), and that it "subordinates" the requirement for an appropriate assessment of a project to the condition that there be "a probability or a risk that the latter will have significant effects on the site concerned". The Habitats Directive had to be interpreted in accordance with the precautionary principle which is one of the foundations of Community policy on the environment (para 44). It concluded:
"45. In the light of the foregoing, the answer to Question 3(a) must be that the first sentence of article 6(3) of the Habitats Directive must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects."
"52. As regards the concept of 'appropriate assessment' within the meaning of article 6(3) of the Habitats Directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment.
53. None the less, according to the wording of that provision, an appropriate assessment of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives.
54. Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field. Those objectives may, as is clear from articles 3 and 4 of the Habitats Directive, in particular article 4(4), be established on the basis, inter alia, of the importance of the sites for the maintenance or restoration at a favourable conservation status of a natural habitat type in annex I to that Directive or a species in annex II thereto and for the coherence of Natura 2000, and of the threats of degradation or destruction to which they are exposed
56. It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned."
"29. That provision thus prescribes two stages. The first, envisaged in the provision's first sentence, requires the member states to carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on that site [citing Waddenzee (above) paras 41, 43]
31. The second stage, which is envisaged in the second sentence of article 6(3) of the Habitats Directive and occurs following the aforesaid appropriate assessment, allows such a plan or project to be authorised on condition that it will not adversely affect the integrity of the site concerned, subject to the provisions of article 6(4).
40. Authorisation for a plan or project, as referred to in article 6(3) of the Habitats Directive, may therefore be given only on condition that the competent authorities once all aspects of the plan or project have been identified which can, by themselves or in combination with other plans or projects, affect the conservation objectives of the site concerned, and in the light of the best scientific knowledge in the field are certain that the plan or project will not have lasting adverse effects on the integrity of that site. That is so where no reasonable scientific doubt remains as to the absence of such effects "
The application and its consideration
i) October 2009 to June 2010: the initial supporting material, consultations with statutory agencies, and EIA screening (23 April 2010);
ii) July 2010 to January 2011: submission of July Flood Risk Assessment (updated in August) and Phase II Ecological Assessment, leading to withdrawal of statutory objections and the decision of the planning committee on 20 January 2011 to give delegated powers to officers to approve the development subject to conditions;
iii) June 2011 to September 2011: correspondence with appellant's solicitors leading to a reference back to the committee and final decision to approve on 8 September 2011.
i) In response to an informal approach by CMGL's planning consultant, Natural England on 3 December 2009 expressed concern in respect of the possible effect on the river of the drain system, "particularly in relation to the potential for diesel spillage and polluted run-off from the water bay when lorries are washed down". They said that if "hydrological connectivity" could be established, it was likely that an appropriate assessment would be required under the Habitats Regulations.
ii) In February 2010 a "Phase I Ecological Assessment", commissioned by CMGL from specialist consultants, recorded that the potential risks to the River Wensum SAC "had not been fully evaluated". It was essential that pollution control measures and operation of the Interceptor were adequate for the lorry park in all conditions, particularly during heavy rainfall. It was "assumed that an Appropriate Assessment will be required under the Habitats Regulations 1994 which will fully address risks to the SAC and identify further mitigation requirements".
iii) On 14 May 2010 Natural England objected to the application on the basis that there was "insufficient information" for them to advise whether the proposal was likely to have significant effects on the river under the Habitats Regulations. The applicant should be required to submit information relating to "the hydrological connectivity between the Surface Water Infiltration Basin and drain system adjacent to the proposed lorry park, and the River Wensum SAC".
iv) On the same day the planning officer wrote to CMGL expressing his own concerns that the submitted water measures would be inadequate. He observed that the details submitted in respect of flood risk and surface water management were "very sketchy and imprecise regarding the actual management train to be used to handle surface water pollutants". Advice from the Construction Industry Research and Information Association (CIRIA) suggested that the use of oil receptors should be avoided where possible, primarily because of the management required to maintain them, and the risk that inadequate management in heavy rain could result in pollutants not being properly contained.
v) On 28 May 2010, the Environment Agency wrote to the council recording their objection on the basis of the inadequate flood risk assessment, noting in particular the lack of information on the infiltration test and the design of the infiltration basin.
"I explained the proposed development to Natural England and was advised that, subject to pollution prevention measures being clearly identified and addressed, an Environmental Impact Assessment would not be required."
The screening form, as completed by him, indicated that the site was in a sensitive area and that the development fell within Schedule 2 of the Regulations, but that it was not likely to have significant effects on the environment and no EIA was required, the reasons being given as follows:
"Subject to the applicant/agent ensuring that appropriate mitigation and safeguarding measures are put in place to prevent the possible discharge of pollutants and contamination from the site in the River Wensum (SAC & SSSI). Advice received from Natural England (Mike Meadows) that subject to pollution prevention measures being clearly identified and addressed, EIA would not be necessary."
i) On 13 August 2010, Natural England withdrew their objection, indicating that the new material had "addressed satisfactorily" the concerns raised in their previous letter.
ii) The Environment Agency, by letter dated 19 August 2010, maintained its objection on a number of grounds, including the absence of details about future maintenance. In response CMGL's consultants prepared a further report ("the August 2010 FRA"), which included further details of run off and peak rainfall proposed by the Environment Agency were incorporated, and proposals for a larger separator, and also set out the proposed maintenance regime. This satisfied the Agency, which on 13 September 2010 withdrew its previous objection, on the condition that a surface water drainage scheme in accordance the August 2010 FRA be implemented prior to the completion and occupation of the development.
iii) On 3 October a report from the council's own Conservation, Design and Landscape team maintained their objections, commenting on inadequacies in the two FRAs. On 9 December 2010, following receipt of further information from CMGL, they withdrew their objections. The judge noted (para 85), and as I understand accepted, the evidence of the planning officer as to the reasons for their change of position.
" [Officers] are of the view that no appropriate assessment is required in light of all the information that now exists and that there would not be a likely significant effect on the River Wensum SAC as a result of this proposal and that the requirements of the Habitats Directive and Habitats Regulations have been satisfied."
In relation to the EIA Directive, the officers' view "remains that the proposal is not EIA development on the basis that there are not likely to be significant environmental effects". This view was supported by the recent response from Natural England confirming that "there would not be a likely significant effect on the River Wensum SAC as a result of this proposal if the proposed mitigation measures are put in place".
The present proceedings
"These conditions, which could only be imposed where the Committee considered them necessary, suggested that the Committee considered that there was a risk that pollutants could enter the river. This would also have been a rational and reasonable conclusion available to the Committee, in the light of the detailed matters set out above.
It does not seem to me that the council could, rationally, adopt both positions at once. I do not consider that it is open for me to consider that this inconsistency was simply a function of local democracy at work, and that it could be ignored. "
He did not think that the decision could be saved by exercising a discretion not to quash. Accordingly he ordered that the grant of permission be quashed. At the same time he dismissed a separate claim to quash the response given by Natural England, which he considered to have been based on the correct Waddenzee test. There has been no appeal against that part of his judgment.
"The only other point I should mention in relation to the EIA Regulations is that they make provision for a local planning authority to adopt an early 'screening opinion' as to whether a proposed development requires an EIA. A defective screening opinion does not, however, invalidate the entire decision-making process. The ultimate question is whether planning permission has been granted without an EIA in circumstances where an EIA was required: see R (Berky) v Newport City Council  EWCA Civ 378,  Env LR 35, per Carnwath LJ at para 22" (para 12).
I would respectfully question Richards LJ's reliance on my own remarks in Berky, which were not directed to the same issue. However, the judgment thereafter seems to have proceeded on the basis (which does not seem to have seriously challenged) that a defect in the screening process at an early stage could be remedied by proper consideration at the time of the actual grant.
"It is true that the decision-making process got off to a bad start, with a flawed screening opinion. But that did not lead in practice to any failure to consider relevant matters. The concerns expressed by Natural England and the Environment Agency, in particular, ensured that the question of mitigation measures was properly addressed. The measures proposed in the resulting flood risk assessments served to meet those concerns. Natural England's final view that there would not be a likely significant effect was re-stated in emphatic terms in its letter of 26 July 2011, which was one of the documents before the Committee and was highlighted in the officers' report "
The committee had all the necessary information before them, and there was nothing to suggest that they applied too relaxed a test. The significance of the site's proximity to the River Wensum SSSI and the SAC was spelled out very clearly in the report, as was the relevance of mitigation measures to the assessment. He concluded:
"In my view, therefore, the Committee was put in a position where it could properly make the requisite assessment as to the likely effect of the development on the SSSI and the SAC, and I agree with the deputy judge that the decision not to have an EIA or an Appropriate Assessment was 'a rational and reasonable conclusion available to the Committee' on the material before it." (para 52)
He also rejected, in the same terms as the judge, the grounds of challenge relating to matters other than effects on the SAC. In view of these conclusions, it was not necessary for the court to consider the possible exercise of discretion in relation to remedies.
The arguments in the appeal
" domestic law (in line with the [preamble to the EIA Directive]) anticipates a decision on whether or not EIA is required to be made by the decision-making authority at an early stage. It is accepted that it may happen for whatever reason that a decision not to have EIA is made erroneously at an earlier stage and this can and must be rectified. Indeed the decision-maker should keep a negative screening under review. However what is not permitted, but which occurred starkly in the present case, is reliance on 'mitigation measures' during the consenting process (here, measures contained in the [July FRA]) to convert a project that is likely to have significant effects on the environment into one which is judged not to do so and thus screen out the project from the assessment process."
i) The correct approach towards the timing of screening for the need for EIA and AA, in the process of applying for planning permission or other consents;
ii) Whether or to what extent "mitigation measures" may be taken into account in EIA screening.
iii) If either the first or second issue is decided in the appellant's favour, whether the court nevertheless can and should exercise its discretion to refuse to quash the planning permission.
iv) Whether the answers to the above points under European law are sufficiently clear not to require a reference to the CJEU.
"Screening" and the Habitats Directive
"In summary as the CJEU explains the HD process is a two-step process and the decision maker has to be sure at stage one (the screening stage) that the possibility of adverse effects can be excluded before dispensing with the requirement for AA. In order to satisfy the HD, the decision-maker doing the screening must identify the conservation objectives of the site and the risks posed by the project and reach a decision that the risks to the conservation objectives can be excluded on the basis of objective information.
If the risks are not excluded and an AA is required at stage 2, the project can only be authorised if the decision maker can be sure that no reasonable scientific doubt remains as to an absence of adverse effects to the conservation objectives."
This two-stage view of the process under the Habitats Directive was not as such challenged by Mr Lockhart-Mummery. To some extent, as I understood him, he felt constrained by the fact that a similar approach had been adopted by the council itself. However, since there seems to be some confusion on the point, it is important that we should address it as a matter of principle.
"49. The threshold at the first stage of article 6(3) is thus a very low one. It operates merely as a trigger, in order to determine whether an appropriate assessment must be undertaken of the implications of the plan or project for the conservation objectives of the site
50. The test which that expert assessment must determine is whether the plan or project in question has 'an adverse effect on the integrity of the site', since that is the basis on which the competent national authorities must reach their decision. The threshold at this (the second) stage is noticeably higher than that laid down at the first stage. That is because the question (to use more simple terminology) is not 'should we bother to check?' (the question at the first stage) but rather 'what will happen to the site if this plan or project goes ahead; and is that consistent with "maintaining or restoring the favourable conservation status" of the habitat or species concerned?' "
"Article 6(3) and (4) define a step-wise procedure for considering plans and projects.
(a) The first part of this procedure consists of an assessment stage and is governed by article 6(3), first sentence.
(b) The second part of the procedure, governed by article 6(3), second sentence, relates to the decision of the competent national authorities.
(c) The third part of the procedure (governed by article 6(4)) comes into play if, despite a negative assessment, it is proposed not to reject a plan or project but to give it further consideration.
The applicability of the procedure and the extent to which it applies depend on several factors, and in the sequence of steps, each step is influenced by the previous step." (para 4.2)
"Unlike an EIA, which must be in the form prescribed by the EIA Directive, and must include, for example, a non-technical summary, enabling the public to express its opinion on the environmental issues raised (see Berkeley v the Secretary of State for the Environment  2 AC 603 per Lord Hoffmann at p 615), an appropriate assessment under article 6(3) and regulation 48(1) does not have to be in any particular form (see para 52 of Waddenzee judgment), and obtaining the opinion of the general public is optional "
"In none of this material do I see even an obligation to carry out a screening assessment, let alone any rule as to when it should be carried out. If it is not obvious whether a plan or project is likely to have a significant effect on an SPA, it may be necessary in practice to carry out a screening assessment in order to ensure that the substantive requirements of the Directive are ultimately met. It may be prudent, and likely to reduce delay, to carry one out [at] an early stage of the decision-making process. There is, however, no obligation to do so." (para 68)
"107. the necessary certainty cannot be construed as meaning absolute certainty since that is almost impossible to attain. Instead, it is clear from the second sentence of article 6(3) of the Habitats Directive that the competent authorities must take a decision having assessed all the relevant information which is set out in particular in the appropriate assessment. The conclusion of this assessment is, of necessity, subjective in nature. Therefore, the competent authorities can, from their point of view, be certain that there will be no adverse effects even though, from an objective point of view, there is no absolute certainty."
In short, no special procedure is prescribed, and, while a high standard of investigation is demanded, the issue ultimately rests on the judgement of the authority.
Timing of EIA screening
"40. Mr Maurici [for the Secretary of State] accepted that screening decisions will usually be made at an early stage of the planning process. However, if a council came to the belief during the course of making the decision that the proposed development might have significant effects on the environment it would be open to the council to require an environmental statement at that stage "
"Provided the procedures relating to consultation are complied with, and the representations are before the planning authority when it makes its decision, neither logic nor common sense nor the public interest dictate that the courts should treat the exercise as invalid merely because the planning authority only realised the need for the statement late in the day. Similarly, in my view it also follows that if a decision is taken not to call for a statement, that is capable of being a valid decision notwithstanding that it was not taken until shortly before the permission was given. There would be no point in requiring a fresh application in which the authority would again conclude that no statement was required." (para 58, emphasis added)
" in circumstances where the pollution prevention measures had not been fully identified at that stage the council could not be satisfied that the mitigation measures would prevent a risk of pollutants entering the river, when the mitigation measures were not known " (para 60)
Mr Lyon evidently relied on his understanding of the advice of Mr Meadows, but he in turn had not regarded it as a formal consultation, and it was not part of his role to advise on EIA issues. More importantly, it was impossible at that stage to reach the view that there was no risk of significant adverse effects to the river. All the expert opinion, including that of CMGL's own advisers, was to the effect that there were potential risks, and that more work was needed to resolve them. It was also clear that the mitigation measures as then proposed had not been worked up to an extent that they could be regarded as removing that risk. This could be regarded as an archetypal case for environmental assessment under the EIA Regulations, so that the risks and the measures intended to address them could be set out in the environmental statement and subject to consultation and investigation in that context.
"45. Whilst each case will no doubt turn upon its own particular facts, and whilst it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development, the underlying purpose of the Regulations in implementing the Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures.
46. It is not appropriate for a person charged with making a screening opinion to start from the premise that although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds. The appropriate course in such a case is to require an environmental statement setting out the significant impacts and the measures which it is said will reduce their significance "
" it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects?"
"39. I accept that the authority must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment. But this does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter. As the judge said, the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."
" to prove that the procedural defect invoked is such that, in the light of the circumstances of the case, there is a possibility that the contested decision would have been different were it not for the defect and that a substantive legal position is affected thereby."
"in accordance with the principle of equivalence, must not be less favourable than those governing similar domestic actions and, in accordance with the principle of effectiveness, must not make it in practice impossible or excessively difficult to exercise rights conferred by Union law" (para 45)
Since one of the objectives of the Directive was to put in place procedural guarantees to ensure better public information and participation in relation to projects likely to have a significant effect on the environment, rights of access to the courts must extend to procedural defects (para 48).
"49. Nevertheless, it is unarguable that not every procedural defect will necessarily have consequences that can possibly affect the purport of such a decision and it cannot, therefore, be considered to impair the rights of the party pleading it. In that case, it does not appear that the objective of Directive 85/337 of giving the public concerned wide access to justice would be compromised if, under the law of a member state, an applicant relying on a defect of that kind had to be regarded as not having had his rights impaired and, consequently, as not having standing to challenge that decision.
50. In that regard, it should be borne in mind that article 10a of that Directive leaves the member states significant discretion to determine what constitutes impairment of a right
51. In those circumstances, it could be permissible for national law not to recognise impairment of a right within the meaning of subparagraph (b) of article 10a of that Directive if it is established that it is conceivable, in view of the circumstances of the case, that the contested decision would not have been different without the procedural defect invoked.
52. It appears, however, with regard to the national law applicable in the case in the main proceedings, that it is in general incumbent on the applicant, in order to establish impairment of a right, to prove that the circumstances of the case make it conceivable that the contested decision would have been different without the procedural defect invoked. That shifting of the burden of proof onto the person bringing the action, for the application of the condition of causality, is capable of making the exercise of the rights conferred on that person by Directive 85/337 excessively difficult, especially having regard to the complexity of the procedures in question and the technical nature of environmental impact assessments.
53. Therefore, the new requirements thus arising under article 10a of that Directive mean that impairment of a right cannot be excluded unless, in the light of the condition of causality, the court of law or body covered by that article is in a position to take the view, without in any way making the burden of proof fall on the applicant, but by relying, where appropriate, on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court or body, that the contested decision would not have been different without the procedural defect invoked by that applicant.
54. In the making of that assessment, it is for the court of law or body concerned to take into account, inter alia, the seriousness of the defect invoked and to ascertain, in particular, whether that defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making in accordance with the objectives of Directive 85/337."
"57. The appellant (who is publicly funded) lives near the site, and shares with other local residents a genuine concern to protect her surroundings. With hindsight it might have saved time if there had been an EIA from the outset. However, five years on, it is difficult to see what practical benefit, other than that of delaying the development, will result to her or to anyone else from putting the application through this further procedural hoop.
58. It needs to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle-race. Furthermore, it does not detract from the authority's ordinary duty, in the case of any planning application, to inform itself of all relevant matters, and take them properly into account in deciding the case."