Where a proposed development falls within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”) – in terms of (a) matching one or more of the descriptions set out in Schedule 2 and (b) meeting the applicable threshold and criteria stated there, or being located in a sensitive area – a local planning authority (LPA) must then go on to decide whether the development is likely to have significant effects on the environment by virtue of factors such as its size, nature or location. If it concludes that it is likely to, the LPA must adopt a screening opinion to that effect. (Where the determination is by the Secretary of State, the equivalent step is the making of a screening direction.) The development is then an EIA development for the purposes of the Regulations.
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Where a proposed development falls within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”) – in terms of (a) matching one or more of the descriptions set out in Schedule 2 and (b) meeting the applicable threshold and criteria stated there, or being located in a sensitive area – a local planning authority (LPA) must then go on to decide whether the development is likely to have significant effects on the environment by virtue of factors such as its size, nature or location.
If it concludes that it is likely to, the LPA must adopt a screening opinion to that effect. (Where the determination is by the Secretary of State, the equivalent step is the making of a screening direction.) The development is then an EIA development for the purposes of the Regulations.
In R (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 89; [2012] PLSCS 147 the appellant had sought unsuccessfully to quash a negative screening direction made by the Secretary of State on the principal ground that he had misdirected himself on the meaning of “significant effects on the environment”. (The predecessor regulations applied, but nothing hangs upon that fact.) The appellant contended that a significant environmental effect was one that had a real prospect of influencing the outcome of the planning application.
The Court of Appeal, recognising expressly that the issue was one of sufficient importance to merit an authoritative and fully reasoned ruling, dismissed the appeal. It held that the test to be applied was whether the development was likely to have significant effects on the environment.
The appeal judges then stated as follows: The criteria to be applied are set out in the Regulations, and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The decision maker must have regard to the precautionary principle and to the degree of uncertainty as to environmental impact, as at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker.
John Martin
