Administrative Court Reaffirms Environmental Assessment Duties Post-Finch

In The King (on the application of Alison Caffyn) v Shropshire Council & L J Cooke & Son [2025] EWHC 1497 (Admin), the Administrative Court applied the Supreme Court's reasoning in Finch in a completely different factual context to reaffirm the now broad obligations to assess indirect environmental effects under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (EIA Regulations). The court also emphasised the need for real-world consideration of cumulative impacts, in line with the purpose of environmental protection.

Background

This case concerned the decision by a local planning authority (LPA), Shropshire Council, to grant planning permission for an intensive poultry unit (IPU) to the Interested Party (the Planning Permission). The claimant sought judicial review of the Planning Permission, alleging that the LPA's approach to the environmental effects of the IPU was deficient.

The IPU was to house 200,000 chickens and would produce 3,600 tonnes of manure annually. The case largely considered the downstream use and processing of manure and its likely impact on watercourses and habitats.

Key points

• For an environmental impact assessment (EIA) to be legally adequate, an LPA must assess the likely indirect effects of the proposed project. Applying Finch, this requires evaluating questions of causation and whether effects are "capable of meaningful assessment".
• Both elements involve an element of evaluative judgment on the part of the decision-maker, but there needs to be evidence of an assessment and consideration process. Mere information about effects is not sufficient if there is no reasoned conclusion on the issues of causation and whether effects can be meaningfully assessed.
• The existence of a parallel control regime – or another competent authority – is not a basis for confining and limiting the scope of an assessment which the LPA is statutorily obliged to conduct.

Judgment

A number of grounds and sub-grounds were advanced by the claimant, two of which were upheld by Fordham J.

Assessment of likely indirect effects for the purpose of an EIA

The claimant argued that the LPA failed to adequately assess the environmental effects of spreading manure (in both raw and digestate form) on third-party land for the purposes of the IPU's EIA. In particular, the claimant argued that the nitrate and phosphate content of the manure posed a likely "indirect effect" on watercourses, as manure generation and use as fertiliser were inevitable consequences of the IPU.

The court found that the EIA adequately addressed raw manure, with the relevant effects having been considered and a planning condition imposed which was designed to be effective in preventing the spreading of raw manure by providing for it to be taken to a licensed treatment facility. There was also full and public transparency, facilitating participatory engagement, which is a crucial aspect of the EIA process and duties.

However, the court held that the LPA had unlawfully omitted assessment of digestate impacts from the decision-making process. Fordham J explained that in Finch the Supreme Court identified two applicable criteria as a matter of law:

• Causation: The effect must be causally connected to the proposed development. This is not limited to direct or immediate consequences and has a wide causal reach. The test is whether the effect is "likely" to occur, with no requirement to be "part of the proposed development". While the strongest test of causation was met in Finch itself, the Supreme Court left open whether a less stringent test may be sufficient in other circumstances. Importantly, the Supreme Court left room for the LPA to exercise evaluative judgment in determining whether such effects are sufficiently likely to warrant assessment.
• Capability of Meaningful Assessment: The effect must be capable of being meaningfully assessed. This does not require absolute certainty or precision, but there must be a sufficient evidential basis to support a reasoned conclusion. The potential effect must not be a matter of speculation or conjecture. Again, the Supreme Court recognised that this element also allows for evaluative judgment by the LPA in asking whether indirect effects are capable of assessment.

In this case, the court found that the LPA had failed to address either limb of the Finch test in relation to digestate.

On causation, the Supreme Court had made it clear in Finch that the processing of a project's product or byproduct did not sever the chain of causation and therefore, in this case, the anaerobic digestion process of raw manure to digestate did not break the chain of causation. The fact that there was some information about digestate was not sufficient – EIA is a process of information plus assessment, and there was no document recording the LPA addressing the environmental effects of digestate. In the absence of any identifiable evaluative judgment on this point, the LPA failed to carry out a legally adequate assessment.

The court also rejected the LPA's argument that the environmental impacts of spreading digestate, unlike those of greenhouse gas emissions in Finch, were not intrinsically inevitable, involved contingency, conjecture and speculation and were incapable of meaningful assessment. However, if spreading raw manure on unidentified third-party land could be assessed, Fordham J did not see any reason why digestate could not be. Finch made it clear that in some situations there may be reasons why an assessment could not be undertaken, but there was no consideration leading to a reasoned explanation on that point. The court concluded that, whilst the impacts of digestate may need to be assessed at a higher level of generality, the LPA's failure to address the capability of reasonable assessment at all in the EIA made the LPA's decision legally inadequate.

Fordham J was clear that where there is an unaddressed evaluative question belonging to the primary decision-maker, the right course is to quash the decision and remit the matter for reconsideration of that question. In terms of reasonableness review, this was described as a gap in reasoning which vitiates the approach to EIA in law.

Cumulative assessment and relevance of parallel control regimes

The claimant also successfully argued that the LPA had failed to conduct a lawful in-combination assessment under the The Conservation of Habitats and Species Regulations 2017.

The relevant Regulations and guidance require consideration of effects or implications in combination with other plans or projects, including those "plans or projects currently subject to an application for consent", but the LPA only considered projects with pending planning permissions and not environmental permits (EPs). A project seeking a varied EP may introduce new cumulative effects capable of being identified for meaningful assessment, which should have formed part of the in-combination assessment.

Fordham J emphasised that the "wording and purpose is that real-world in-combination impacts are confronted. Each project may – if viewed in isolation – be assessed as benign and granted consent. Environmental protection is about real-world effects and the environmental reality takes effects of plans and projects when viewed together." It was irrelevant that it would be a different organisation handing out the permit. The LPA had therefore failed to follow its own guidance and misdirected itself as to its statutory duty.

The court also rejected the LPA's reliance on the National Planning Policy Framework (NPPF) to justify its lack of consideration of EPs. While the NPPF states that LPAs should assume that parallel pollution control regimes will operate effectively, Finch makes clear that this cannot be used to confine or limit the scope of an assessment that the LPA is statutorily required to undertake. It was a material error of law to exclude projects needing a new or varied EP, creating an unlawful lacuna and undermining the environmental protection objectives.

Comment

This judgment signals a continued judicial emphasis on full and proper decision-making in planning and environmental decisions and clarifies the scope of environmental assessments required under both the EIA and Habitats regimes. It reinforces that, in assessing not only direct impacts but also indirect and cumulative effects, LPAs must record and be able to evidence their assessment and any exercise of evaluative judgment clearly. Simply having information about certain aspects is not sufficient – there must be consideration and assessment.

Further, the existence of parallel regulatory regimes does not relieve LPAs of their duty to fully assess the proposed project and its potential impacts. Notably the court focused on the real-world impacts and implications, and the broad purpose of environmental protection, rather than taking a narrow technical approach to in-combination assessment.