Martin Edwards and John Martin consider the requirement to take into account cumulative impacts on the adoption of a screening opinion
Key points
- Cumulation may increase likely environmental impact
- But how far into the future is it necessary to look?
This month’s offering is very much prompted by the decision of Stuart-Smith J in R (on the application of Commercial Estates Group Ltd) v Secretary of State for Communities and Local Government [2014] EWHC 3089 (Admin); [2014] PLSCS 264. The proceedings involved only a renewed application for permission to proceed for judicial review, but the court heard full argument from leading counsel for two of the principal parties and the judge handed down a lengthy reasoned decision. Under challenge was a negative screening direction issued by the secretary of state. The claimant’s criticism was that he had erred by failing to take into account a draft core strategy’s allocation of land for development in the immediate area of the application site, albeit that at the relevant time the draft core strategy was in a state of limbo.
Legal foundations
In terms of the law, the starting point at the relevant time was Annex 3.1 of Directive 85/337/EEC as subsequently amended and codified by Directive 2011/92/EC (together “the EIA Directive”). This provided that the criteria for making an initial assessment of whether a project was likely to have significant environmental effects included “the cumulation with other projects”. The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations”), which transpose the provisions of the EIA Directive into domestic law, reflect this in paragraph 1(b) of Schedule 3, where the reference is to “the cumulation with other developments”.
It is when we come to guidance that the picture becomes somewhat blurred. European guidance, published as long ago as May 1999, describes cumulative impacts as being “impacts that result from incremental changes caused by other past, present or reasonably foreseeable actions together with the project”. Against that, current DCLG guidance, contained in Planning Practice Guidance, refers to the need to have regard to the cumulative effects arising from any existing or approved development. (However, it does also state that there could be circumstances where two or more planning applications for development should be considered together in this context.)
Commercial Estates
In Commercial Estates, the local planning authority (“the LPA”) had submitted an approved draft core strategy for examination. It earmarked 360 hectares of land in the LPA’s area for the provision of 4,500 homes and 13 acres of employment land. The claimant had simultaneously submitted a hybrid planning application reflecting this. However, some months earlier, the second interested party had applied for planning permission to construct 150 homes in the earmarked area. Were that development to be carried out, it would frustrate the claimant’s plans.
The secretary of state issued his negative screening direction in respect of the second interested party’s proposed development. The claimant sought judicial review, its grounds of challenge being: (1) that the secretary of state should have taken into account, as a material consideration, the draft core strategy’s allocation of land for the provision of 4,500 homes; and (2) that rationally he should have gone on to conclude, on the facts, that it was “reasonably foreseeable” that the larger development scheme would come forward either as an allocation in the core strategy or by way of a planning application.
In support of the second ground, and in the absence of relevant authority, the claimant contended that the words “reasonably foreseeable” should be accorded the same meaning as when they are used in the common law of negligence, ie “a real risk which would occur to the mind of a reasonable man… and which he would not brush aside as far fetched”.
But for wider concerns, the court’s approach to the central issue deserves supportive attention. For a number of convincing reasons, it rejected the claimant’s arguments as to the proper meaning of the words “reasonably foreseeable” when used in the European guidance. (Those reasons can be read elsewhere.) It held that the secretary of state had not erred, and that the claimant had failed to show an arguable case that he had acted unlawfully in the issue of the negative screening opinion. Those wider concerns relate to the extent to which cumulative effects need to be taken into consideration now.
What happened next
Subsequent to the issue of the secretary of state’s negative screening direction in Commercial Estates, the EIA Directive was further amended (see Directive 2014/52/EU). The criteria in question are now expressed to include “the cumulation with other existing and/or approved projects”. This change clearly renders outdated the 1999 European guidance in this respect. But ideally it also prompts the need for a clarifying amendment to the EIA Regulations, and – while mirroring the main thrust of the current DCLG guidance – poses a question mark over the recommendation that it may, on occasion, be necessary for two or more planning applications to be considered together. Where does that leave practitioners in the meantime?
John Martin is a planning law consultant and Martin Edwards is a specialist planning barrister:
www.martinedwardsplanninglaw.com
