Failure on the part of the decision maker to follow the rules set down in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 has provided fertile ground for challenging the grant of planning permission.

Regulation 3 prevents a local planning authority from granting planning permission for any environment impact assessment (EIA) application without considering environmental information. They must state in their decision that they have considered it.

Regulation 3 states:

1. This regulation applies:

(a) to every EIA application received by the authority with whom it is lodged on or after the commencement of these Regulations…

2. The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.

Requirements

An EIA will be required for a development if it either falls within Schedule 1 or 2 to the Regulations. Developments listed in Schedule 1 will always require an EIA, whereas Schedule 2 developments will require an EIA if they are likely to have a significant effect upon the environment by virtue of their nature, size or location.

Schedule 2 development is generally considered to include housing developments, and is the one we will focus on here.

Regulation 4 provides that a Schedule 2 development is an EIA development if the applicant for the planning permission submits an environmental statement in respect of that application, or the local planning authority adopts a screening opinion stating that a development is an EIA development.

Regulation 5 allows for a developer to request a screening opinion from the local planning authority. If the development is unlikely to have a significant effect upon the environment by virtue of its nature, size or location then such a request will be drafted to ask that a screening opinion is given that the proposal is not an EIA development.

The courts have consistently stated that it is an absolute requirement that any application that falls within Schedule 2 (in general, in respect of housing developments, an application upon land over 0.5 hectares, although that is not the only test and on appeal this threshold does not necessarily apply) should either be accompanied by an environmental statement or be screened by the local planning authority to the effect that no environmental statement is required. Failure to do so could render any subsequent grant of planning consent open to a successful judicial review.

Need for formality in screening opinion

The most succinct court decision on the need for formality is in the case of R v South Cambridgeshire District Council, ex parte Lebus [2002] when Jeremy Sullivan J stated that the Council’s approach to the Regulations was fundamentally flawed in that it principally failed to realise that a screening opinion could not be made informally. In this case the planning director had apparently made a decision that an EIA was not required, but that decision was not in writing and was not placed on the planning register. The summary screening table that was placed on the planning file was not enough.

This approach of the courts originates from the decision in the Fulham Football Club case that involved the proposals to redevelop their ground, Craven Cottage. There were two decisions, both cited as Berkeley v Secretary of State for the Environment [2001]. In summary, these cases mean that the Regulations must be complied with not just in spirit but also to the word. If a screening opinion is required then it must be provided and in a manner that is in accordance with the Regulations.

Lord Hoffmann, in a much quoted passage in Berkley, stated when he considered environmental statements that:

… a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence…

does not satisfy the requirements set out in the Regulations.

An EIA must be in one document (no matter how many volumes in that document), and the Regulations must be followed… or must they?

A more lenient approach

Recently the courts have moved away from the extremely strict approach that had been taken in interpreting the Regulations and requirements in respect of screening opinions. In the case of dounger Homes (Northern) Ltd v First Secretary of State and Calderdale Metropolitan District Council [2004] the Court of Appeal has stated that where a screening opinion has been made but not strictly in accordance with the Regulations then any person seeking to quash the grant of a planning consent following that opinion must show that their interests have been prejudiced by the grant in order for their application to be successful.

The facts of the Younger Homes case are fairly unusual in that it was a developer seeking to quash the grant of a consent on appeal for a retail development on land that it partly owned. It was (we presume), by taking that course of action, seeking to prevent an argument being mounted against its preferred residential scheme on the basis of the use of the site for retail and potential employment loss, among other matters. As such the case is probably unique but it does show the courts’ willingness to interpret the Regulations sensibly.

It is important to note that if the developer in question had been able to show that their interests had been substantially prejudiced by the failure to comply with the Regulations in making the screening opinion, then in all likelihood the consent would have been quashed. It is worth looking at what Ousley J at first instance actually stated (which was approved by the Court of Appeal):

The local planning officer had authority to provide a screening opinion. The issue of contamination was addressed in the screening opinion. The planning officer had sufficient information to be able to reach a proper judgment in his screening opinion. The screening opinion was undertaken with formality and transparency and was in writing and was made publicly available. Accordingly the applicant’s reasons for challenging the screening opinion were not made out. The applicant had suffered no prejudice and the discretionary power to quash the planning permission did not therefore arise.

Even with the issues raised in Europe and beyond, as discussed below, this still holds good. The requirement that the letter of the Regulations needs to be strictly adhered to is not now good law but importantly the Regulations (and Directive) must be adhered to, probably a bit more than in spirit.

Intervention by the Secretary of State

It should also be noted that the High Court stated in Younger Homes that in a call-in application the Secretary of State would be obliged to screen an application if the local planning authority had, in effect, got it wrong. It will be up to the Inspector to require this from the Secretary of State in any appeal situatÚon where this becomes an issue, potentially whether or not it is apparent. A failure on the part of the Inspector or Secretary of State takes us back into the realm of potential judicial review against that failure.

A further recent decision shows how far the courts have now gone down this route. In John Kent v First Secretary of State [2004] Sir Michael Harrison stated in his decision handed down on 3 December 2004 that an applicant for judicial review must show that:

… the environmental statement is so deficient that it could not be reasonably described as an environmental statement as defined by the Regulations.

It must still be in one document but the task of assessing if it is sufficient is down to the decision maker and, except in the case of Wednesbury unreasonableness, the courts should not interfere.

What information is required?

The environmental statement must contain sufficient information in order to allow the decision maker to make an informed judgement. This will apply equally to an application for a screening opinion.

In respect of an outline application (see R v Rochdale Metropolitan Borough Council, ex parte Tew [1999]) an environmental statement will be sufficient if it is attached to a master plan that is sufficiently detailed to allow an assessment of the significant effects of a development; not a bare outline, which for any larger scheme (or arguably any scheme over 0.5 hectares) is no longer an option.

A developer must ascertain, after consultation with their expert environmental and legal consultants, that the information available is sufficient. They must ensure that where remediation measures are proposed they are sufficient to deal with any contamination upon the site. They must make a decision based upon this as to whether the proposal is likely to have any significant effect upon the environment.

If this cannot be confirmed then the developer must consider the submission of an environmental statement with the application. This is irrespective of the duty to screen imposed on the local planning authority. To do otherwise would render the developer open to the possibility of a successful challenge being undertaken against any consent granted upon that application.

Section 73 applications, reserved matters approvals and approval of details under Grampian-style conditions

A section 73 application is an application to carry out development without complying with a condition. The effect of a successful application is a new decision. This has been held to be a development consent and will require a re-assessment of the enviŸonmental issues. It will need to be screened and an environmental statement provided if there is a significant effect on the environment (see the ECJ case of Wells v Secretary of State for Transport, Local Government and the Regions [2004]).

For reserved matters approvals and approval of details under Grampian-style conditions the law is at present unclear:

• First there is a question as to whether these are development consents; this can probably be answered in the affirmative.
• Secondly, there is the question as to what must be done if a mistake in the handling of an application is discovered retrospectively.

There is a reference to the ECJ from the House of Lords in R v London Borough of Bromley, ex parte Barker [2003]. The issue that arose was summarised as follows by Lord Bingham of Cornhill:

… in the context of a dispute where an environmental impact assessment was not carried out when, after the grant of outline planning permission subject to approval of reserved matters without an EIA being carried out, approval was sought of those reserved matters.

Importantly, the ECJ in Wells has already stated that the question of whether a development consent has been granted is a question for it, not the national courts.

This may also apply to approval of details required by a Grampian-style condition.

We can state with a degree of certainty that if the proposal was properly assessed at its primary stage (application of outline or full consent) then, if there is not any material change to the likely significant effects on the environment, the decision maker may use the previous screening opinion or environmental statement. To put that simply, they do not have to have a new statement or details provided. They must still make the decision. This is really no different to the issues raised in Rochdale (see above).

If the decision initially is open to challenge, then that will not be the case.

To illustrate how important this area is becoming we are waiting for the results of an EC challenge to the UK government for its failure to properly deal with the White City and Crystal Palace developments. The outcome could be for both permissions to be revoked.

The result could lead to a further change on the law and the concept of multi-stage environmental assessments is not ruled out.  © Property Law Journal