R (Swire) v Secretary of State for HCLG: Full report

A recent legal case saw the High Court come to a decision that emphasises the importance of EIAs

In R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin) ('Swire'), the High Court has quashed a planning permission and held that the Secretary of State unlawfully decided that planning permission could be granted without an environmental impact assessment (EIA) first being undertaken.

This is a case with an unusual set of facts. The development was for a relatively small scheme of up to 20 residential units in the Kent Downs Area of Outstanding Natural Beauty. In the 1990s, the site was one of four in the UK licensed by Defra to dispose of cattle infected with bovine spongiform encephalopathy (BSE), which resulted in the Creutzfeldt-Jakob disease (CJD) outbreak in humans.

It was common ground that the site was contaminated, and the developer submitted a preliminary assessment. However, this assessment did not address the risk of contamination to the site through its previous use, and the risk of CJD. While these risks were well-known locally, they appeared to be unknown to the developer, and were brought to the developer and local planning authority's attention by a local resident.

The developer's consultants dismissed the risk of acquiring CJD from land or water in or under the site as negligible, and both the local planning authority and the Secretary of State took the view that an EIA was not required because redevelopment of the site for residential use was not likely to have any significant adverse effects on the environment, as any likely significant adverse effects on the environment can be overcome either through the imposition of conditions or at the reserved matters stage.

The Court held that it was unlawful to assume that effective remediation works could be worked out during the course of development. It was held that there was a lack of any expert evidence and risk assessment on the nature of any BSE-related contamination at the site (and any hazards it might present to human health), and that the measures which might be required to remediate any such contamination and hazards had not been identified.

This follows the leading case of the Court of Appeal in Gillespie v First Secretary of State [2002] EWCA Civ 400, [2003] Env LR 663 ('Gillespie'). In Gillespie, a case involving the redevelopment of a former gasworks to residential use, on a site acknowledged to be extensively contaminated, the Court of Appeal considered the approach to screening and the consideration of mitigation and remediation measures. It stated: “When making the screening decision, these contingencies must be considered and it cannot be assumed that at each stage a favourable and satisfactory result will be achieved. There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached“.

The key basis for the judgment in Swire, and in Gillespie before it, was the failure to consider the contingencies and instead rely on an assumption that such contingencies would successfully mitigate the contamination risk.

There are three key takeaways from Swire.

1. It remains good law that proposals for mitigation or remediation measures can be taken into account when determining whether EIA is required. However, those mitigation and remediation measures need to be properly considered.
2. All parties must ensure that sufficient evidence is provided to support any conclusion that there will not be likely significant effects at the screening stage. From a developer perspective, this means identifying and assessing any mitigation or remediation measures required to address known contamination. From an EIA authority's perspective, this means properly considering those measures in the screening decision. It will not be appropriate, particularly for complex sites where the outcome of measures to address contamination may not be certain, to simply assume that mitigation or remediation measures will succeed.
3. Where there is doubt as to whether a project will have likely significant effects in the EIA context, the precautionary principle should be applied. The High Court reiterated the advice of the Supreme Court case of Champion v North Norfolk District Council [2015] UKSC 52, where Lord Carnwath advised that: “Application of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA“. This is an important point for developers. Cases such as Swire demonstrate that, where there is material doubt, the risk of proceeding without a full EIA may outweigh going through the full EIA process. Ultimately, the less risky approach for projects where there remains material doubt at the screening stage may be to follow a robust scoping and EIA process.

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