05 August 2015

Last month, in R (on the Application on Champion) v. North Norfolk District Council [2015] UKSC 52, the Supreme Court laid down clear guidance for circumstances where judicial relief may be refused even where procedural irregularity has been established.

The developer submitted an application for a lorry park which included a Flood Risk Assessment (FRA) recognising a risk that surface water runoff from the site would pollute a Special Area of Conservation (SAC). The development fell within Schedule 2 of the EIA Regulations and North Norfolk District Council issued a screening opinion stating that EIA was not required as it was not likely to have significant effects on the environment, subject to the applicant putting in place appropriate mitigation measures. Natural England and the Environment Agency objected to the application initially, but the applicant prepared two new FRAs and an ecological assessment, following which the objections were withdrawn. The Council eventually granted the planning permission subject to conditions, including monitoring of water quality.  

Mr Champion, on behalf of local residents, alleged that the Council had failed to comply with the procedures required by the Regulations governing EIA and appropriate assessment.

The Supreme Court held that although the application should have been subject to assessment under the EIA Regulations, the failure did not prevent the fullest possible investigation of the proposal and the involvement of the public. The judgment highlighted that there was no reason to think that a different process would have resulted in a different decision and that the claimant's interests had not been prejudiced. In relation to appropriate assessment, the Court held that the failure to exercise the trigger for carrying out appropriate assessment at an earlier stage did not in itself undermine the legality of the final decision. No special procedure was prescribed and the issue was a matter for the judgment of the authority as to whether there was a risk of significant adverse effects to a protected site.

The Court also clarified that; “in future cases, the Court considering an application or permission to bring judicial review proceedings should have regard to the likelihood of relief being granted, even if an irregularity is established.”  

This case provides welcome clarity for both claimants and defendants alike in relation to the need to consider the prejudice to the claimant and likely relief when assessing the merits of a challenge based on a procedural error.

In addition, earlier this year, amendments were made to the Senior Courts Act 1981 which prevent judges from granting leave or relief if they consider it highly likely that a decision-maker's conduct would not have affected the outcome, unless there are exceptional public interest reasons. This further emphasises the need for caution to be exercised when considering whether to bring a judicial review claim.

If you would like any further information or advice on any of the issues raised in this briefing, please contact Gary Soloman, Sarah Sutherland or Liz McCartney.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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