The High Court has recently stressed – in R (on the application of Milton (Peterborough) Estates Company v Ryedale District Council (see PP 2015/134) – that whenever, following the adoption of a negative screening opinion, 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 review its original screening opinion. This is despite the fact that the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations”) impose no express continuing duty upon a LPA to do so.
This issue has since arisen again in R (on the application of Champion) v North Norfolk District Council (see PP 2015/141). There, the planning application had been validated on 15 April 2010. It was accompanied by a “Site Specific Flood Risk Assessment”. The application site was in a sensitive area, and the development fell within Schedule 2 to the EIA Regulations.
On 23 April 2010, the LPA adopted a negative screening opinion that relied upon the “appropriate mitigation and safeguarding measures” being put in place to prevent the possible discharge of pollutants and contamination from the site into the nearby river. Later, on 10 July 2010, new consultants acting for the applicant submitted to the LPA a “Flood Risk Assessment and Pollution Prevention Strategy”. Conditional planning permission was granted on 13 September 2011.
The Supreme Court held that the screening exercise was legally defective. The pollution prevention measures had not been fully identified at that point, so the LPA could not be satisfied then that mitigation measures would prevent a risk of pollutants and contaminants entering the river. Lord Carnwath said that this could be regarded as “an archetypal case for environmental assessment” under the EIA Regulations, so that the risks – and the measures intended to address them – could be set out in an environmental statement and subjected to consultation and investigation in that respect.
The court stressed that it was important that a LPA, in principle, adopted a screening opinion early in the planning application process. (That intention was clearly stated in the preamble to the EIA Directive.) But equally, it was important to recognise that a negative screening opinion may need to be reviewed in the light of later information. The same could be said in the case of a screening direction issued by the secretary of state.
John Martin is a planning law consultant
