Breaches of the EIA Directive and the EIA Regulations and the court’s discretion not to quash – once more

Hard on the heels of the decision of the Supreme Court in R (on the application of Champion) v North Norfolk District Council (see PP 2015/141, PP 2015/143 and PP 2015/146), the High Court has had to decide the appropriateness or otherwise of exercising its discretion not to quash a planning permission granted by a local planning authority (“LPA”) where – having recognised that the development fell within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations”) – the LPA failed to adopt and publish a screening opinion prior to granting the planning permission. In R (on the application of Devon Wildlife Trust) v Teignbridge District Council [2015] EWHC 2159 (Admin), the developer had applied for planning permission for up to 230 dwellings and 2,500 sq m of employment space on a site close to a SAC, part of which provided a dedicated bat habitat. Consequently, an appropriate assessment was required under the Conservation of Habitats and Species Regulations 2010 (“the CHS Regulations”). This was carried out before the planning permission was granted. But at the point at which the planning permission was granted, only an inconclusive draft screening opinion had been prepared for the purposes of the EIA Regulations (it had not been published). Two months after the grant of planning permission, the LPA updated the draft screening opinion in negative form, and published it on its website. The claimant submitted, in support of one of its grounds of challenge, that the LPA’s failure to comply with the EIA Regulations had “shut out” the claimant from the EIA process, so denying it the right to be heard on the relevant issues. Accordingly, the claimant had suffered prejudice. The LPA contended that its breach of the EIA Regulations did not result in the automatic quashing of the grant of planning permission, and in the present circumstances the court should exercise its discretion not to quash. The court allowed the claimant’s application on this ground, but restricted relief to the grant of a declaration. Its reasons for declining to quash the grant of planning permission included the following: (1) The only potential likely significant environmental effect was in respect of matters protected by the CHS Regulations. (2) The LPA had been entitled to take into account mitigation measures which were part of the appropriate assessment under the CHS Regulations. (3) The claimant – and other parties interested in the application – had still been able to make representations on the planning application in any event. (4) Should the matter be remitted to the LPA, the claimant had not suggested any new evidence that it, or others, would bring forward. (5) On the facts, there would be a public disbenefit in delaying commencement of the development any farther. John Martin is a planning law consultant