High Court quashes EIA screening direction in respect of site previously used to dispose of BSE-infected cattle

In R (o.a.o. Swire) v SSHCLG [2020] EWHC 1298 (Admin) the High Court (Lang J) has quashed the Secretary of State's decision that EIA was not required for the proposed development of 20 houses on one of four sites in the UK that were used during the 1990s to dispose of cattle infected with BSE. The Court held that although the Secretary of State had correctly recognised that the issue of BSE-related contamination required further investigation, assessment and remediation of any contamination found, there had been a lack of any expert evidence and risk assessment on the nature of BSE-related contamination at the site and potential remediation measures had not been identified. Owing to the lack of expert evidence, the Secretary of State had simply not been in a position to make an "informed judgment" (see Dyson LJ in R (o.a.o. Jones) v Mansfield DC [2004] Env LR 21 at [39]) as to whether or to what extent any proposed remedial measures could or would remediate any BSE-related contamination. The Secretary of State had assumed that remedial measures proposed pursuant to a planning condition would be successful, without sufficient information to support that assumption. In doing so the Secretary of State had erred in law, making the same error as in Gillespie v First Secretary of State [2003] Env LR 663. Heather Sargent acted for the successful claimant, led by David Wolfe QC and instructed by Richard Buxton Solicitors.