Participation, presentation and review - Introduction to Environmental Impact Assessment - page 189

parties (e.g. a financial or health interest). Establishing standing is one of the main
difficulties in applying for judicial review. 5 If standing is established, the third party must
then convince the court that the competent authority did not act according to the relevant
EIA procedures. The court does not make its own decision about the merits of the case,
but only reviews the way in which the competent authority arrived at its decision:
The court will only quash a decision of the [competent authority] where it
acted without jurisdiction or exceeded its jurisdiction or failed to comply
with the rules of natural justice in a case where those rules apply or where
there is an error of law on the face of the record or the decision is so
unreasonable that no [competent authority] could have made it. (Atkinson
& Ainsworth 1992)
Various possible scenarios emerge. A competent authority may fail to require an EIA for
a Schedule 1 project, or may grant permission for such a project without considering the
environmental information. In such a case, its decision would be void.
A competent authority may decide that a project does not require EIA because it is not
in Schedule 1 or Schedule 2 with significant environmental effects. This was the issue in
the case of R v. Swale Borough Council and Medways Port Authority ex. parte RSPB
(1991) concerning the construction of a storage area for cargo, which would require the
infill of Lappel Bank, a mudflat important for its wading birds. The appellants argued that
the project fell within either Schedule 1 or Schedule 2 with significant environmental
effects; the LPA felt that an EIA was unnecessary. The courts held that a project falling
within a schedule is a decision for the local authority to make, and open for review only if
no reasonable local authority could have made it. Several court cases have also revolved
around the level of detail needed in EISs of outline planning applications: the subtle rules
emerging from these decisions are discussed by ODPM (2003b).
A competent authority's decision may have been made by an officer who does not
have the authority to do so. A decision not to require an EIA was overturned in R v. St.
Edmundsbury Council, ex parte Walton (1999) because the decision had been taken by an
officer who did not have formal delegation.
A competent authority may make a decision in the absence of a formal EIA, but with
environmental information available in other forms. This was the case in R v. Poole
Borough Council, ex parte Beebee and others (1991) concerning a decision to develop
part of Canford Heath. In this case the courts ruled that, despite the lack of an EIS and the
attendant rigour and publicity, enough environmental information was available for the
council to make an informed decision. In a similar Scottish appeal case against an LPA
decision to refuse planning permission for an open-cast coal mine, the Reporter felt that
an EIA would not have raised issues that would not have been raised by other means
(Weston 1997). A different judgement may have been made if the competent authority
had been shown to have made its decision before it had received all the relevant
environmental information. 6
A competent authority may not obtain all of the information needed to reach an
appropriate decision. For instance, in R v. Cornwall County Council ex parte Jill Harding
(2001) the planning authority gave permission for a development despite the fact that the
EIS did not include information on bats, which site conditions favoured. Instead the