EIA: Environmental Impact Assessment: “reasoned conclusion”: whether ‘up to date’

Girling v East Suffolk Council [2020] EWHC 2579 (Admin)  – https://www.bailii.org/ew/cases/EWHC/Admin/2020/2579.html

A summary of the submissions

    1. Regulation 3 of the 2017 Regulations prohibits a planning authority from granting planning permission for EIA development “unless an EIA has been carried out in respect of that development.” The planning permission granted by the Council was for EIA development. Regulations 2(1) and 4 define “EIA” as the process consisting of the preparation of an environmental statement, any consultation, publication and notification required in respect of EIA development and “the steps required under regulation 26.”

 

    1. Regulation 26 of the 2017 Regulations provides (in so far as is material): –

 

“(1) When determining an application or appeal in relation to which an environmental statement has been submitted, the relevant planning authority, the Secretary of State or an inspector, as the case may be, must-
(a) examine the environmental information;
(b) reach a reasoned conclusion on the significant effects of the proposed development on the environment, taking into account the examination referred to in sub-paragraph (a) and, where appropriate, their own supplementary examination;
(c) integrate that conclusion into the decision as to whether planning permission or subsequent consent is to be granted; and
(d) if planning permission or subsequent consent is to be granted, consider whether it is appropriate to impose monitoring measures.
(2) The relevant planning authority, the Secretary of State or the inspector, as the case may be, must not grant planning permission or subsequent consent for EIA development unless satisfied that the reasoned conclusion referred to in paragraph (1)(b) is up to date, and a reasoned conclusion is taken to be up to date if in the opinion of the relevant planning authority, or the Secretary of State or the inspector, as the case may be, it addresses the significant effects of the proposed development on the environment that are likely to arise as a result of the proposed development.”
    1. By schedule 4 to the 2017 Regulations, the Environmental Statement was required to include “a description of the relevant aspects of the current state of the environment (baseline scenario) …” (paragraph 3) and “a description of the likely significant effects of the development on the environment…” (paragraph 5).

 

    1. The Claimant contends that the Council concluded that parts of the ecological survey work available were “not up to date” and therefore regulation 26(2) was not satisfied. Mr Wolfe QC submits that it follows that by regulation 3 the Council was prohibited from granting the planning permission which was ultra vires.

 

    1. He bases his argument firstly on guidance from the Chartered Institute of Ecology and Environmental Management (“CIEEM”) which was accurately explained in paragraph 8.3.1 of the officer’s report

 

“Guidance on survey validity from the Chartered Institute of Ecology and Environmental Management (CIEEM) states that reports of more than 3 years old are ‘unlikely to still be valid and most, if not all, of the surveys are likely to need to be updated (subject to an assessment by a professional ecologist)’ (Advice note on the lifespan of ecological reports and surveys, CIEEM, April 2019). Such an assessment must be based on a number of criteria as set out in the advice note, and a clear statement setting out appropriate justification must be provided. EDF Energy considers that they have provided a comprehensive suite of desk-study and field survey data for the estate, collated over the last 12 years. Surveys in 2018-19 have confirmed that habitat conditions on site have remained similar throughout the period under consideration and species present are unlikely to be changed. There is also ongoing monitoring of habitat conditions undertaken by both Suffolk Wildlife Trust and EDF Energy.”
    1. Mr Wolfe QC relies in particular upon two paragraphs of the officer’s report, first, paragraph 8.3.2 which stated: –

 

“There is a suite of desk study and field survey data provided with the application, much of it is more than 3 years old, including some surveys which relate to mobile species (such as breeding and wintering birds). Whilst the habitat baseline used in the environmental statement is likely to be broadly similar now compared to the time of survey, the baseline for some species may have altered and therefore the assessment provided may under assess the impact of the proposed development. This is an area of professional disagreement between the statutory consultees, our own ecologist and EDF Energy’s ecologists, with regards to the suitability and age of survey material supporting the application. However, in taking a balanced approach and mindful that some surveys are currently being undertaken (bat) and others can be updated pre-commencement (badger etc.), on balance it is considered that is difficult to object to the proposal on these grounds as the identified impacts are likely to be the same as already identified. To ensure appropriate mitigation a condition is proposed requiring further survey work to be undertaken where required, in particular in relation to the outline elements of the proposal prior to those works starting.”

I have italicised the words which were emphasised by Mr Wolfe QC.

    1. Second, paragraph 8.3.27 stated in relation to breeding birds: –

 

“The most recent survey work provided for this group dates from 2015 and therefore there is the potential that the range of species and the number of pairs, present may have changed since that time, however, as referenced earlier we are content that the 2015 bird survey along with the precautionary approach and ability to carry out further surveys if required under the CEMP, that we are content with this approach. EDF Energy considers that given the small amount of habitat to be impacted by their proposal there is unlikely to be any significant change in the breeding bird assemblage. There are methods to support biodiversity net gain that could be employed to mitigate adverse impact and it is suggested that these be required via planning condition.”
    1. Reading paragraphs 8.3.2 and 8.3.27 together, Mr Wolfe QC invites the court to infer that the Council’s ecologist, and hence the committee acting in agreement, concluded that the survey information provided on breeding birds was out of date and therefore did not meet the requirements of regulation 26(2) of the 2017 Regulations. He submits that this was the response of the Council to a concern raised by RSPB that the developer was relying upon an absence of material changes in local habitat rather than carrying out fresh surveys of the species present.

 

    1. Plainly, a good deal of survey work was carried out in relation to a wide range of species and habitats, but no legal challenge is raised in relation to any other aspect of that material. Nor can it be said that this is a case where a subject which the authority was legally required to assess was not surveyed or addressed at all as part of EIA process.

 

    1. Ultimately, Mr Wolfe QC accepted, as became apparent at the permission hearing (see the judgment of Andrews J at [26] to [27]), that his argument depends on whether the officer’s report to the committee is to be read as stating that the Council’s ecologist disagreed with the developer’s team on whether the survey material relating to breeding birds was sufficiently up-to-date.

Discussion

    1. Regulation 26 of the 2017 Regulations transposes Article 8a of Directive 2011/92/EU, which was inserted by Article 1(9) of Directive 2014/52/EU. Article 1(2)(g)(iv) refers to the “reasoned conclusion” of the competent authority on the significant effects of the project on the environment, taking into account its examination of the environmental information. Article 8a(1) requires that that conclusion be incorporated into the decision to grant development consent. Article 8a(5) requires relevant decisions to be taken within “a reasonable period of time.” That has been transposed by regulation 26(4) of the 2017 Regulations.

 

    1. Article 8a(6) then requires that the competent authority be satisfied that its reasoned conclusion under article 1(2)(g)(iv) is up to date when taking a decision to grant development consent. To that end, Member States may set time frames for the validity of such a conclusion or any of the other decisions referred to in Article 8a(3). This provision has been transposed by regulation 26(2). It is therefore plain that regulation 26(2) is dealing with whether the competent authority is satisfied that its “reasoned conclusion” under regulation 26(1)(b) on the significant environmental effects of the proposal is up to date. The legislation, in particular regulation 3, does not make the validity of the development consent depend upon a formal conclusion by the authority that all the environmental information is up to date. The deeming provision in the second half of regulation 26(2) does not indicate otherwise. A “reasoned conclusion” of the authority is taken to be up to date if the authority judges that its conclusion addresses the likely significant environmental effects. Here the Council judged that the surveys relating to breeding birds were sufficiently reliable for present purposes. The object of regulation 26(2) is straightforward, namely to prevent a planning permission being granted if there has been a delay since the time when the authority’s “reasoned conclusion” was reached without the authority being satisfied that it may still be relied upon. This deals with the risk of a material change of circumstances occurring between an authority reaching its “reasoned conclusion” and the grant of planning permission.

 

    1. It is impossible to read the officer’s report as indicating that the Council was not satisfied that its “reasoned conclusion” under regulation 26(1) was up to date, whether in relation to the whole or any part of the environmental information. The collective views of officers on the environmental assessment were brought together and included in the officer’s report, which was considered by the committee not long afterwards. The decision was issued about 2 months after the committee’s resolution. The Council did not consider that its reasoned conclusion, expressed through the officer’s report and minutes, had become out of date during that period, and the Claimant suggest otherwise.

 

    1. Quite apart from the construction of regulation 26(2), the issue of whether the survey information on breeding birds (which formed only one aspect of the overall ecological information) was “up to date”, taking into account the more recent surveys of habitats, was a matter of judgment for the Council going to the quality of that information. It may therefore only be challenged in the courts if that judgement was irrational (R (Blewett) v Derbyshire County Council [2004] Env LR 29 at [41]; R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at [136-144]; Gathercole v Suffolk County Council [2020] EWCA Civ 1179). This is the correct legal context in which ground 2 falls to be considered.

 

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