Supreme Court rules factory expansion can proceed despite flaws in environmental assessment process

In a unanimous judgment, five Supreme Court judges found that there was a "legal defect" in the procedure that led to planning permission being granted to plans to extend the Crisp Malting factory with new silos and a lorry park. However, there was nothing in the facts of the case to suggest that North Norfolk District Council would have taken a different decision if it had conducted an EIA before granting planning permission, they said.

"It seems as if the court is, legally speaking, holding a strict line on when assessments should be done, and why the failure to do them at the appropriate time can't necessarily be remedied later - while, at the same time, giving broad hints that the case was a waste of time since the issue had been sorted out long ago," said litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com. "The suggestion that judges should be careful not to grant permission for judicial review in these circumstances is the 'sting in the tail' of this case."

"However, there is also an unrealistic comment by the judges about it possibly being a sensible move by developers to carry out an EIA even if the council says that it is not needed. There speaks someone who has never had to pay for an EIA," he said.

The case had been brought by Matthew Champion, a local resident and member of the Ryburgh Village Action Group of campaigners that had opposed the development. The plans involved construction on a site close to the River Wensum, which is a 'special area of conservation' protected under the EU Habitats Directive. Local planning authorities are required to make an "appropriate assessment" of the implications of proposed development on sites protected by the Habitats Directive, and can only grant planning permission "after having ascertained that it will not adversely affect the integrity" of the site.

The EU's EIA Directive and related UK regulations require local planning authorities to "screen" planning applications for likely "significant effects on the environment". Where such effects are likely, an EIA involving an environmental statement and public consultation must be carried out. In this case, the council stated at screening stage that an EIA was not required, provided that the development met certain conditions including monitoring the river's water quality. Champion successfully challenged the consent before the High Court for failure to comply with the EIA and Habitats legislation, but this was overturned by the Court of Appeal.

Giving the court's unanimous judgment, Lord Carnwath dismissed Champion's further appeal. Although the court agreed that the council should have ordered an EIA at screening stage, he said that this failure "did not in the event prevent the fullest possible investigation of the proposal and the involvement of the public".

"There is no reason to think that a different process would have resulted in a different decision," he said.

"This was not a case where the environmental issues were of particular complexity or novelty. There was only one issue of substance ... 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," he said.

The judge added that his intention was "not to put the burden of proof" onto Champion, but "rather to highlight the absence of anything of substance to set against the mass of material going the other way".

Lord Carnwath said that he hoped that the appeal had "enabled this court to lay down clearer guidance as to the circumstances in which relief may be refused even where an irregularity has been established".

"In future cases, the court considering an application for permission to bring judicial review proceedings should have regard to the likelihood of relief being granted, even if an irregularity is established," he said.