R (Champion) v North Norfolk District Council

Journal of Environmental Law, 2016, 28, 523 531 doi: 10.1093/jel/eqw030 Analysis R (Champion) v North Norfolk District Council Ned Westaway* INTRODUCTION The decision of the UK Supreme Court in R (Champion) v North Norfolk District Council 1 marks a watershed in the approach of the British courts to European Union (EU) environmental law challenges. In particular, it confirms that domestic principles of discretion will apply to public law remedies, even when breaches of EU law have been established. How that is to be achieved without compromising the essential rights guaranteed by EU Directives is a difficult question. The UK s transposition of the procedural rights from Directive 2011/92/EU (Environmental Impact Assessment (EIA) Directive), 2 in particular, has been much litigated and it has been held that there are limits to reliance on discretion in granting remedies at the national level. 3 Champion is also notable for drawing a clear line between EIA and appropriate assessment under Article 6(3) of Directive 92/43/EEC (Habitats Directive). 4 The practical consequences of Champion are to some extent reduced by the insertion of sections 31(2A) and (3C) into the Senior Courts Act 1981 5 by the Criminal Justice and Courts Act 2015, and may be further reduced by the likely rearrangements to the legal order following the UK referendum decision of 23 June 2016; however, Champion is undoubtedly a significant decision. FACTUAL BACKGROUND Mr Champion, a member of the Ryburgh Village Action Group, challenged the decision of North Norfolk District Council to grant planning permission for the erection * LLB LLM, Barrister, Francis Taylor Building Chambers (Ned.Westaway@ftb.eu.com) 1 [2015] UKSC 52; [2015] 1 WLR 3710 (Champion). 2 European Council and Parliament Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2012] OJ L26/1. This Directive has since been amended (and in some respects strengthened) by Directive 2014/52/EU [2014] OJ L124/1 ( Revised EIA Directive 2014 ). 3 See eg Case C-508/03 Commission v UK [2006] I-3969; reliance on judicial discretion was also criticised in Case C-530/11 Commission v UK [2014] ECLI:EU:C:2014:67. 4 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 5 Namely that the court must refuse to grant permission or relief in a judicial review action if it considers that the outcome for the applicant would have been substantially different if the conduct complained of had not occurred. VC The Author 2016. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com 523

524 R (Champion) v North Norfolk District Council of two silos for 3,000 tons of barley and the construction of a lorry park and wash bay at a site close to the River Wensum, a Special Area of Conservation (SAC) under the Habitats Directive, designated amongst other things for its rich invertebrate fauna. As noted in the Supreme Court s judgment [i]t became apparent at a very early stage that the main environmental issue was the possible run-off from the site to the river. 6 It was common ground that appropriate assessment under the implementing regulations, the Conservation of Habitats and Species Regulations 2010 (Habitats Regulations), 7 was likely to be needed. However, Natural England, the Environment Agency and the relevant Council officer expressed serious reservations about the level of detail provided with the application. It was in this context, early in the application process, that an EIA screening decision under the (then applicable) Town and Country Planning EIA Regulations 1999 (EIA Regulations) was taken. That decision, described by Lord Carnwath as surprising, 8 was that, subject to pollution prevention measures being identified and addressed, no EIA was required. The details of the project evolved and by the time that the proposal came before the Council s planning committee for the first time in January 2011, the concerns of all statutory consultees in relation to the River Wensum had been overcome. The subsequent resolution to grant permission was met with a large number of complaints, including from the Ryburgh Village Action Group. It was therefore referred back to the committee. At a second meeting in September 2011, the committee agreed with the view of officers that the proposal could be granted planning permission without EIA or appropriate assessment and resolved again to grant planning permission. However, in light of one councillor s continuing concern about the risk of run-off to the protected river, conditions were imposed on the permission requiring monitoring of water quality and remedial measures if needed. DECISION OF THE HIGH COURT AND COURT OF APPEAL In the High Court, the decision to grant planning permission was quashed by James Dingemans QC, sitting as a deputy High Court judge, on the narrow ground that imposing conditions recognising a risk to the river was (irrationally) inconsistent with not requiring EIA or appropriate assessment. 9 The Court of Appeal (Richards, Lewison LJJ and Coleridge J) allowed the appeal holding that there was no inconsistency: the imposition of conditions was as a precautionary measure for the purpose of reassurance, without considering that in their absence there was a likelihood that pollutants would enter the river. 10 The Court of Appeal noted that there had been a defective EIA screening opinion, but did not consider that relevant matters were left out of account and agreed with the first instance 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. 11 6 Champion (n 1) [17]. 7 SI 2010/490. 8 Champion (n 1) [19]. 9 R (Champion) v North Norfolk DC [2013] EWHC 1065 (Admin). 10 R (Champion) v North Norfolk DC [2013] EWCA Civ 1657, [44]. 11 ibid [52].

R (Champion) v North Norfolk District Council 525 PROCEEDINGS IN THE SUPREME COURT That latter conclusion moved the argument on in the Supreme Court to two main issues: (i) the timing of the decision as to whether EIA or appropriate assessment is required; and (ii) the relevance of mitigation measures. In short, the Supreme Court allowed the appeal to some extent, finding that the decision was unlawful as an EIA had been required (although not an appropriate assessment under the Habitats Directive). However, in the circumstances, the Court considered that it should exercise its discretion to refuse relief notwithstanding the breach of EU law. Lord Carnwath also made some important comments on delay in bringing the proceedings. ENVIRONMENTAL IMPACT ASSESSMENT There was little dispute that the original EIA screening had been flawed. Lord Carnwath (giving the only judgment) noted that the application 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. 12 That was not remedied by what followed: [i]t was not enough to say that the potential adverse effects had now been addressed in other ways. 13 On mitigation measures, Lord Carnwath confirmed that these may be taken into account at the screening stage; 14 however, application of the precautionary principle meant that cases of material doubt should generally be resolved in favour of EIA. 15 In the instant case, [t]he mitigation measures as then proposed [that is, at the screening stage] were not straightforward, and there were significant doubts as to how they would be resolved. 16 There should have been an EIA and this was a procedural irregularity that was not cured by the final decision. 17 That conclusion contrasts with the approach, adopted by the Court of Appeal, that the Council had been entitled to treat the proposal as not requiring an EIA. On Lord Carnwath s reasoning, the initial unresolved uncertainties over the mitigation measures mandated an EIA: [t]he fact that they were ultimately resolved to the satisfaction of Natural England and others did not mean that there had been no need for EIA. 18 To some extent, this should serve as a salutary warning to those promoting development of the need for EIA. In R (Friends of Basildon Golf Course) v Basildon DC, Pill LJ criticised treating EIA as a psychological barrier and commented that where it is arguable that an EIA is required, the sensible and convenient course might well [be] to require one. 19 Lord Carnwath commented to similar effect in Champion 12 Champion (n 1) [46]. 13 ibid [52]. 14 Confirming the approach in R (Hart DC) v SSCLG [2008] EWHC 1204 (Admin) and now reflected in art 4(4) and 4(5) of the revised EIA Directive 2014 (n 2). 15 Champion (n 1)[51]. 16 ibid [53]. 17 ibid. 18 ibid. 19 [2010] EWCA Civ 1432 [61].

526 R (Champion) v North Norfolk District Council that [the developer] may feel in retrospect that it would have been better if they had prepared an environmental statement under the EIA Regulations on their own initiative rather than simply relying on the negative opinion of the planning officer. 20 The force of that reflection is somewhat diminished, however, given that the developer was ultimately successful in upholding its planning permission. APPROPRIATE ASSESSMENT Under Regulation 61 of the Habitats Regulations, if a plan or project is likely to have a significant effect on a European site, such as an SAC, there must be an appropriate assessment to determine whether or not the integrity of the site will be adversely affected. Appropriate assessment under the Habitats Regulations in the UK usually reflects the two distinct aspects of this regulation. The first aspect is the likely significant effect stage. It is well established that this is a low precautionary threshold, that is, it is easily met if there is a suggestion of adverse effects on an EU site. 21 The second aspect is the adverse effect on integrity stage. A plan or project may not proceed save in strictly prescribed circumstances if there is a real risk of an adverse effect on integrity. The argument in Champion related to the first stage only. The Supreme Court rejected the argument that there is a separate stage for habitats screening in any formal sense. 22 At most, there is an informal threshold decision : no special procedure is prescribed, and, while a high standard of investigation is demanded, the issue ultimately rests on the judgment of the authority. 23 This does not mean that competent authorities are wrong to carry out screening -type exercises under the Habitats Regulations. However, it does underscore the difficulty of challenging a decision not to carry out an appropriate assessment. Even where an appropriate assessment is carried out, there is no duty to consult with the public except where the authority considers appropriate. 24 While the Habitats Directive has a substantive edge that is, that a plan or project may not risk an adverse effect on the integrity of a protected site it lacks in this respect the procedural strength of the EIA Directive with its prescribed screening and other procedural requirements. DISCRETION AS TO RELIEF Undoubtedly the most significant aspect of the decision relates to relief where there has been a breach of procedural requirements under the EIA Directive. Lord Carnwath, following his own comments from Walton v Scottish Ministers, 25 noted it is clear that, even where a breach of the EIA Regulations is established, the court 20 Champion (n 1) [61]. 21 See the seminal decision of the CJEU in the Waddenzee case: Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405. 22 Champion (n 1) [37]. 23 ibid [41]. 24 See Habitats Regulations, reg 61(4) and R (Devon Wildlife Trust) v Teignbridge DC [2015] EWHC 2159 (Admin). 25 [2012] UKSC 44 (Walton).

R (Champion) v North Norfolk District Council 527 retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by EU legislation, and there has been no substantial prejudice. 26 This observation in Walton itself marked a radical departure from previous case law that suggested there was very little discretion to refuse relief where breach of EU environmental requirements under the EIA Directive was concerned. 27 Champion thus provided an important opportunity for the Supreme Court to articulate how far UK national procedural law relating to discretionary relief could operate without undermining strict substantive EU law requirements. In Champion, notwithstanding the legal error of failing to conduct an EIA, Lord Carnwath was in no doubt that relief should be refused. In particular, he noted, there is nothing to suggest that the decision would have been different had the investigations and consultations over the preceding year taken place within the framework of the EIA Regulations as opposed to the planning process. 28 While the mitigation measures as proposed at the outset were not straightforward, Lord Carnwath concluded on the facts: This was not a case where the environmental issues were of particular complexity or novelty. There was only one issue of substance: how to achieve adequate hydrological separation between the activities on the site and the river. It is a striking feature of the process that each of the statutory agencies involved was at pains to form its own view of the effectiveness of the proposed measures, and that final agreement was only achieved after a number of revisions. It is also clear from the final report that the public were fully involved in the process and their views were taken into account. It is notable also that Mr Champion himself, having been given the opportunity to raise any specific points of concern not covered by Natural England before the final decision, was unable to do so. That remains the case. That is not to put the burden of proof on to him, but rather to highlight the absence of anything of substance to set against the mass of material going the other way. 29 He was satisfied that the failure of assessment under the EIA Regulations did not... prevent the fullest possible investigation of the proposal and the involvement of the public. 30 Since Walton, the Court of Justice of the European Union (CJEU) has delivered judgment in Case C-72/12 Altrip v Land Rheinland-Pfalz, 31 which dealt among other things with the requirement in what is now Article 11 of the EIA Directive that those having sufficient interest or maintaining the impairment of a right have access to review the substantive or procedural legality of decisions, acts or omissions taken under the public participation provisions of the Directive. To that decision must now 26 Champion (n 1) [54]. 27 Berkeley v SSETR [2001] 2 AC 603 (concerning the EIA Directive); cf R (Hulme) v SSCLG [2010] EWHC 2386 (Admin) (concerning the Habitats Directive). 28 Champion (n 1) [59]. 29 ibid [60]. 30 ibid [62]. 31 [2013] ECLI:EU:C:2013:712.

528 R (Champion) v North Norfolk District Council be added the CJEU s judgment in Case C-137/14 Commission v Germany 32 of 15 October 2015 (that is, post-champion). Lord Carnwath considered that there was no inconsistency between the approaches in Walton and Altrip: 33 It leaves it open to the court to take the view, by relying on the evidence provided by the developer or the competent authorities and, more generally, on the case file documents submitted to that court that the contested decision would not have been different without the procedural defect invoked by that applicant. In making that assessment it should take account of the seriousness of the defect invoked and the extent to which it has deprived the public concerned of the guarantees designed to allow access to information and participation in decision-making in accordance with the objectives of the EIA Directive. It is important to note the strictness of these tests established in CJEU case law. It must be shown that the decision would not have been different and the burden for so showing rests with the defendant. Furthermore, the rights guaranteed by, and objectives of, the EIA Directive must not be undermined. Champion in some respects was an easy case. The Supreme Court considered that an EIA process would have added nothing there had been the fullest possible investigation and involvement of the public. More controversial are the wider implications of using judicial discretion to avoid granting remedies where there are breaches of the EIA Directive (and other relevant EU laws). Champion sets down a marker for this, so it is important to understand its scope and implications. First, it is far from clear that the dicta in Walton are consistent with the CJEU authorities. Lord Carnwath s view in Walton was that the court s discretion to refuse relief is available on similar grounds to those available under domestic law. 34 Lord Hope in the same case explained that the court s discretion was a balancing exercise between any breach of EU law against the potential prejudice to public and private interests that would result if the schemes and orders were to be quashed. 35 However, Altrip and Commission v Germany, albeit from a different context, do not support the use of countervailing public and private interest factors to justify a refusal to annul a decision that is in breach of EIA law. Nor was that matter the subject of discussion in Champion. If a right derived from EU law is impaired, the CJEU in Commission v Germany held that any condition laid down by the national legislature which has the effect of restricting the review of the courts of the substance of the case will be unlawful. 36 Sections 31(2A) and (3C) of the Senior Courts Act 1981 are arguably caught by this, as would be conditions laid down by the courts. Secondly, and in any event, the CJEU in Altrip and Commission v Germany was considering German legislative provisions, not judicial discretion. The uncertain application of judicial discretion has been held in related contexts not effectively to 32 [2015] ECLI:EU:C:2015:683. 33 Champion (n 1) [58] (citing passages from Altrip). 34 Walton (n 25) [133]. 35 ibid [155]. 36 Commission v Germany (n 32) [61].

R (Champion) v North Norfolk District Council 529 transpose EU law. 37 This point goes to a far deeper tension between the common law in the UK and Ireland and the predominantly civil law EU institutions. 38 Finally, Champion does not revisit the tension with the decision in Berkeley v SSETR 39 that was touched upon in Walton. That aspect of Walton was not uncontroversial, 40 since Berkeley was an important case that indicated a much stricter approach to the refusal of discretionary relief where breaches of EU environmental law were in issue. Berkeley is also memorable for its broad and purposive reading of EIA rights: a directly enforceable right of the citizen...that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. 41 Lord Hoffmann concluded in apparent contradistinction to Champion: A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secreary of State had all the information necessary to enable them to reach a proper decision on the environmental issues. 42 It is not clear whether the point was argued in Champion, but it appears that the environmental information on which there was public consultation amounted to a number of iterative submissions and consultation responses, arguably just the kind of paper chase disapproved of in Berkeley as an appropriate substitute for EIA. DELAY In his judgment, Lord Carnwath also added a potentially important comment about delay in bringing a challenge to a screening decision. While no issue had been taken on the point, he expressly reserved his position as to the correctness of the principle in R (Catt) v Brighton and Hove CC 43 that a failure to mount a timeous challenge to a screening opinion is no bar to a challenge to a subsequent permission on the same grounds. In Champion, the impugned screening decision was taken in April 2010, nearly one and a half years before the grant of permission. Lord Carnwath commented that: I see no reason in principle why, in the exercise of its overall discretion, whether at the permission stage or in relation to the grant of relief, the court 37 See eg Case C-427/07 Commission v Ireland [2009] I-6277 [93] [94]; Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority [2010] I-817 [42] [43]. See also n 4. 38 See eg Sean O Reilly, The Private Enforcement of European Community Laws in the Irish Superior Courts (2009) 31 DULJ 324. 39 [2001] 2 AC 603. 40 See Robert McCracken and Denis Edwards, Standing and Discretion in Environmental Challenges: Walton, A Curate s Egg (Case Comment) (2014) 3 JPL 2014 304. 41 Berkeley (n 27) 615 (Lord Hoffmann). 42 ibid 616. 43 [2007] EWCA Civ 298 (Catt).

530 R (Champion) v North Norfolk District Council should be precluded from taking account of delay in challenging a screening opinion, and of its practical effects (on the parties or on the interests of good administration). 44 The essential point of principle articulated by Pill LJ in Catt, applying the reasoning of the House of Lords in R (Burkett) v Hammersmith and Fulham LBC, 45 is that a screening opinion (like a resolution to grant planning permission) is inchoate. It provides no certainty that the rights of those aggrieved will be affected until the grant of planning permission, which may be refused or may be granted in a different form. 46 To deprive a citizen of the right to challenge a planning permission in those circumstances would be a major and a retrograde step. 47 That reasoning has a certain coherence and power. Where a claimant has delayed since the grant of planning permission and seeks an extension of time, Catt confirms that the court would be entitled to take into account prior knowledge of defects in a screening opinion. 48 Lord Carnwath s invitation is more fundamental. Whether it is taken up will depend upon a factually appropriate case arising. A case of prejudice will be relatively easy to make where a developer has relied upon a negative screening opinion in designing and progressing a planning proposal. However, a number of factual issues will still arise. What does a potential objector need to do to call the lawfulness of a screening opinion into question? Is it necessary to bring a public law challenge? Does it matter if the screening decision is not well publicised (which is often the case)? What about claims based upon a failure to re-screen in light of subsequent information? Requiring a public law challenge to screening decisions could lead to real uncertainty unless it is based upon a consistent rule. It may not be possible (or appropriate) for the courts to formulate such a rule. In any event, any rule should be consistent with the objective of wide access to justice and not act as an excessive restriction on the ability of interested parties to challenge flaws in the EIA process. 49 COSTS AND CONSEQUENCES Champion is undoubtedly a significant decision that may be used to prevent permission being granted for statutory and judicial review challenges 50 and to refuse relief. It undoubtedly has the potential to restrict access to justice, which is deeply problematic in the field of environmental law in light of the UK s obligations under the Aarhus Convention. 51 That may not matter in cases where the procedural defect relied upon genuinely would have made no difference to the outcome. However, 44 Champion (n 1) [63]. 45 [2002] UKHL 23; [2002] 1 WLR 1593. 46 Catt [47] [48]. 47 ibid [49]. 48 ibid [52]. 49 See in this regard the recent CJEU judgment in Case C-570/13 Gruber v Unabh angiger Verwaltungssenat für K arnten [2015] ECLI:EU:C:2015:231 in relation to challenges to prior decisions not to carry out EIA in Austria. 50 As contemplated by Lord Carnwath in Champion (n 1) at [66]. 51 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 2161 UNTS 447 (1998).

R (Champion) v North Norfolk District Council 531 Lord Carnwath said nothing in his judgment about what should be the costs and consequences where a claimant establishes a legal error but is refused relief. It is significant that despite his establishing a legal defect, the Supreme Court ordered Mr Champion to pay the Council s costs, subject to a 5,000 cap. Whether a decision would not have been different without the procedural defect is not necessarily obvious. While EU case law is clear that the burden of showing that it makes no difference does not fall on a claimant, resolving the issue may require evidence both from claimants and defendants. Accordingly, costs and costs exposure are increased, but there is no certainty as to how the courts will allocate costs if a claimant loses on discretion. The traditional approach, supported by the outcome in Champion itself, would be that a claimant who has been denied a remedy is a losing party who should pay the defendant s costs. This may have a significant freezing effect on public interest litigation in this field. Where the High Court does exercise its discretion to refuse relief, provided that the judge properly directs herself, that exercise of discretion can only be challenged on the basis that it is wrong 52. In a recent case, Sales LJ rejected a challenge to a judge s refusal to grant relief on the basis that: [T]he judge was entitled to make the assessment she did that it was inevitable that if the planning committee had been properly advised about the position in relation to housing need in the Council s area it would have made the same decision to grant planning permission for this development on the Green Belt. I would not have considered that her decision based on that assessment could be said to be wrong, even if I might have made a different overall assessment of the position had I been deciding the matter afresh. 53 Persuading a judge as to how that discretion should be exercised has become a more significant battleground since Champion. Establishing a legal error, even under EU law, does not suffice for a claim to succeed. Exactly how widely discretion will be used to deny environmental law challenges remains to be seen; however, unless it is carefully circumscribed, there is a real prospect of incompatibility with EU law. 52 CPR r 52 11(3). 53 R (Smech Properties Ltd) v Runnymede BC [2016] EWCA Civ 42; [2016] JPL 677 [39].