In R (on the application of Burridge) v Breckland District Council [2012] EWHC 1102 (Admin); [2012] PLSCS 90 the court was required to construe the (then in force) Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in the context of two functionally interlinked developments in respect of which separate planning applications had been successfully made.
The developer had originally applied for planning permission (“the first application”) for an anaerobic digester producing biogas (“the AD”) and a combined heat and power plant converting that biogas into heat and electricity (“the CHP”) on the same site. The local planning authority (“LPA”) viewed the first application as a “Schedule 2 application”, i.e. it was for development falling within one of the descriptions set out in Schedule 2 to the Regulations and the relevant threshold was exceeded. However, it issued a negative screening opinion having concluded that the development was not likely to have significant effects on the environment. Accordingly, it was not an “EIA development” requiring the submission of an environmental statement.
In R (on the application of Burridge) v Breckland District Council [2012] EWHC 1102 (Admin); [2012] PLSCS 90 the court was required to construe the (then in force) Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in the context of two functionally interlinked developments in respect of which separate planning applications had been successfully made. The developer had originally applied for planning permission (“the first application”) for an anaerobic digester producing biogas (“the AD”) and a combined heat and power plant converting that biogas into heat and electricity (“the CHP”) on the same site. The local planning authority (“LPA”) viewed the first application as a “Schedule 2 application”, i.e. it was for development falling within one of the descriptions set out in Schedule 2 to the Regulations and the relevant threshold was exceeded. However, it issued a negative screening opinion having concluded that the development was not likely to have significant effects on the environment. Accordingly, it was not an “EIA development” requiring the submission of an environmental statement. The developer later amended the first application by removing the CHP from it and replacing the CHP with some small items of plant. It then applied for planning permission (“the second application”) for the CHP on a separate site and for an underground pipeline approximately 1.1 km in length connecting the two sites. No further screening opinion was issued, in view of the small physical scale of the second application, and the LPA granted planning permission in each case. The claimant, a local resident, sought judicial review of the LPA’s decisions. Her principal ground was that the LPA breached Regulation 7(1) by failing, in considering whether the second application was a “Schedule 2 application”, to take into account the possible cumulative effects with the first application. She relied in particular on guidance in paragraph 46 of Circular 02/99. The court rejected this argument, holding that paragraph 46 was concerned not with whether an application falls within Schedule 2 but rather, if it does, whether there are likely to be significant environmental effects. As had been made clear in R v Swales Borough Council, ex parte Royal Society of the Protection of Birds [1991] 1 PLR 6, while the question whether a development falls within Schedule 2 must be decided strictly in relation to the development the subject of the planning application, if it does then the question of likely environmental effect can be considered more widely and may include reference to other applications which are part of a wider scheme. John Martin
