Where it appears to a local planning authority (“LPA”) that it has received a planning application in respect of a development falling within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”) it is required by regulation 7 of the Regulations to adopt a “screening opinion”, ie a written statement of its opinion as to whether or not the proposed development is an “EIA development”. (In this context, that means a development likely to have significant effects on the environment by virtue of factors such as its nature, size and location.)
Any EIA development requires the LPA to carry out an environmental impact assessment. Thereafter, regulation 3(4) of the Regulations obliges the LPA not to grant planning permission for that development without first having considered the environmental information relevant to the development, in the form of the environmental impact assessment.
While the Regulations do not expressly impose any continuing duty on the LPA in respect of a development falling within Schedule 2 that has already been the subject of a negative screening opinion adopted by the LPA, there is an implied duty. This is because the effect of regulation 3(4) is that the discharge of the duty arising under it crystallises at the point at which planning permission is granted. In order to comply with that duty, the LPA must continue to ensure that the requirements of the Regulations generally are met throughout the lifetime of the planning application.
In R (on the application of Milton (Peterborough) Estates Company v Ryedale District Council [2015] EWHC 1948 (Admin), the claimant applied to quash the grant of planning permission by the LPA to the interested party for a mixed commercial development. One of its successful grounds of challenge was that the LPA had failed to ask itself whether, on a recognised subsequent change of environmental circumstances, it should consider reviewing a negative screening opinion that it had adopted earlier.
The court accepted that this question had never been asked, prior to the grant of planning permission. That failure amounted to an error of law. Whenever there is a subsequent change in the environmental circumstances – or in the development proposals – and there is a realistic prospect that such change may lead to a different outcome in the case of the screening exercise, the LPA must revisit its original screening opinion. The grant of planning permission accordingly fell to be quashed. It would not, in these circumstances, be appropriate for the court to exercise its discretion not to quash. This was not an instance where the failure was purely procedural or trivial in nature.
John Martin is a planning law consultant
