Case law: Application granted for judicial review on EIA decision

In R (Swire) v Secretary of State for Housing, Communities and Local Government, a local resident applied for judicial review of the Secretary of State’s decision that an environmental impact assessment (EIA) was not required for a residential development.

The developer had applied to the local authority for planning permission for a residential development. The site had been used as an animal carcass rendering facility, and in the 1990s was one of four UK sites licensed to dispose of cattle infected with BSE (which resulted in the Creutzfeldt-Jakob disease outbreak in humans).

The developer confirmed that a comprehensive remediation scheme would have to be implemented. The planning officer’s report indicated that the environmental benefits of improving the site’s appearance and removing contamination, as well as the economic and social benefits of housebuilding, were considerations of some weight.

The authority granted permission subject to the implementation of a scheme to deal with land and groundwater contamination, and the Secretary gave a screening direction under the Town and Country Planning (Environmental Impact Assessment) Regulations. He stated that the proposed mitigation measures meant the development was unlikely to have significant effects on the environment, so an EIA was not required. The resident argued that the Secretary had misunderstood the regulations.

When deciding whether the application should be granted, it was considered that the Secretary had been given the task of judging whether the development was likely to have significant effects on the environment, and the court would only intervene if he erred in law. The Secretary had to have sufficient evidence of potential environmental impacts, and the effectiveness of proposed measures, in order to make an informed judgment. The problem was that there was little evidence on the presence and nature of contamination at the site, the potential hazards facing future homeowners, or any safe and effective methods of detecting, managing and eliminating such contamination and hazards. 

By concluding that the mitigation measures would address potential contamination, the Secretary had assumed those measures would be successful without sufficient information. The application was granted.

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