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Until recently, practitioners had assumed that a reserved matters planning
approval would not count as a ‘development consent’ and thus no fresh
Environmental Impact Assessment would be needed. In this belief they were
fortified by Para 48 of the 1999 Circular: ‘reserved matters cannot be
subject to EIA’.
However, that guidance has proved to be incorrect. The ECJ has held that an
EIA may need to be carried out at the reserved matters stage if it becomes
apparent then that the whole project is likely to have significant effects on
the environment. As a result, both the EIA Regs and Circular 02/99 will have
to be amended. In addition, it will have important consequences for many
developers and LAs. It will certainly leave numerous outline consents in a
state of uncertainty. Where reserved matters are proven as outstanding, it
may now be necessary to carry out an EIA and submit an ES if the local
planning authority considers that the granting of reserved matters approval
may result in significant effects on the environment. Although preparing an
EIA can be a lengthy process, the advice in the Property Law Journal is to err
on the side of caution where there is any doubt as to whether one may be
required. In simple terms, an approval of reserved matters made without an
EIA is at risk of being the subject to legal challenge. See [2006] 173 Property
Law Journal 13.
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September 2006 |
