The High Court decision in R (Swire) v Secretary of State for Housing, Communities and Local Government  EWHC 1298 (Admin) provides a useful example of the importance of adequate information to underpin screening decisions when considering planning applications for the development of contaminated land. Here the developer applied for outline planning permission for residential development of a site used as a saw-mill and later as an animal rendering plant. During the 1990s, it had been one of four sites in the UK licensed by DEFRA to dispose of cattle infected with bovine spongiform encephalopathy, which resulted in the outbreak of Creutzfeldt-Jakob disease (CJD) in humans. It had been disused for more than ten years. However, its permit for animal carcass rendering was still in force.
Lang J quashed the permission on the basis of a defective screening process. Applying the principles established in the case law, she held that a screening authority must have sufficient evidence of the potential adverse environmental impacts and the availability and effectiveness of the proposed remedial measures, to make an informed judgment that the development would not be likely to have significant effects on the environment, and that therefore no EIA is required. In this case she noted that there was very limited evidence as to the presence and nature of contamination from BSE-infected carcasses at the site; as to the hazards which any such contamination might present for the homes and gardens to be constructed on the site; and as to any safe and effective methods of detecting, managing and eliminating any such contamination and hazards. The developer had commissioned risk assessment and remediation reports which were submitted to the local authority in support of the application for planning permission. However, none of these reports made any reference to the site’s former use for BSE-infected animal carcass disposal from 1998, nor any risk of contamination from such use. Indeed, the authors of the reports were not even aware of this former use. The judge said:
The judge also noted that the absence of evidence of BSE-related contamination in the Ground Investigation and Generic Risk Assessment undertaken for the developer “was far from conclusive”. It was a “basic, initial document” which itself acknowledged that it “is by no means exhaustive and has been devised to provide an initial indication of potential ground contamination”. The summary in the report said that “a comprehensive site investigation and risk assessment would ultimately be required”. The entire property was more than 7 acres in size, and only 8 trial pits were assessed. Moreover, it was not confirmed that BSE-related contamination could or would have been identified by the tests which were carried out for the other contamination risks which the reports had identified. The Council’s screening opinion accepted the potential risk of BSE-related contamination of the site, both for workers during the construction process and future residents. It stated that “[s]pecialist advice will be sought to consider the remediation of Prions associated with CJD/BSE”. The Council’s approach was to impose a series of stringent environmental conditions to ensure that development would not begin until a scheme to deal with contamination of land and groundwater had been submitted and approved by the local planning authority and until measures approved in the scheme had been implemented. Although the Defendant Secretary of State had correctly recognised that the issue of BSE-related contamination required further investigation, assessment, and remediation of any contamination found, he then applied the wrong legal test and thus committed the errors identified in Gillespie v First Secretary of State  EWCA Civ 400, at  and . See per Laws LJ at para. 46 in that case:
As Lang J stated (para. 106):
In conclusion, Lang J considered that the Defendant had made the same error as in the Gillespie case, and thus his decision that EIA was not required was vitiated by a legal error. The Defendant’s decision in this case had important consequences – it is not merely a technical or procedural error – and therefore it had to be quashed.
Text reference: 21-12