Earlier this year, the High Court concluded in R (on the application of Baker) v
The case involved a successful challenge to the grant of planning permission for extended operations at an existing waste-disposal facility, for which planning permission had been granted earlier. The ground of challenge was that the authority had failed to adopt a screening opinion and its decision that an environmental impact assessment (EIA) was unnecessary was therefore flawed.
The secretary of state as an interested party, sought to argue, unsuccessfully, that an EIA was not required because the further development was a change or extension to an existing development and, of itself, it did not cross the threshold contained in para 13 of column 2 of Schedule 2 to the regulations. (Furthermore, para 13 expressly requires consideration only of whether the change or extension itself may have significant adverse effects on the environment.)
The court held that para 13 limited the screening exercise to the change or extension and did not take into account the possible likely significant environmental effects of the change or extension, when considered cumulatively with the original development. This, the court concluded, was contrary to the purpose and language of the directive.
The court also took the view that the regulations were separately deficient in that they failed to make it clear that the public had a right to request the secretary of state to consider whether an EIA was appropriate before planning permission was granted for a development that was likely to have an adverse effect on the environment. This also is a requirement of the directive.
Communities and Local Government (CLG) is considering amending the legislation, but has recently issued interim guidance to local planning authorities. In circumstances such as those arising in Baker, they are urged to request the secretary of state to consider making a screening direction stating whether an EIA is required. Regulation 4(8) of the regulations gives the secretary of state a residual power to do this, something not available to an inspector or a local planning authority.
CLG has also advised that local planning authorities should, in such circumstances, notify members of the public who feel that the proposed development would be likely to have adverse effects on the environment that they have a right to request the secretary of state to consider issuing a screening direction.
Objectors to the development proposals, such as those in Baker, can also take comfort from the fact that the directive has direct effect, and that they are accordingly entitled to rely on its provisions in the absence of necessary domestic legislation.
John Martin is a freelance writer
