Planning applications – Proposal to construct plant to generate heat and electricity from organic materials – Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 – Defendant council issuing screening opinion that no environmental impact assessment required – Application later split into two when part of development relocated to separate site –Whether further screening opinion required – Claim dismissed
The interested party applied to the defendant council for planning permission to construct an anaerobic digester with a combined heat and power plant (CHP). The proposed digester was to receive cattle slurry, chicken litter and maize, which it would convert into “biogas” comprising methane and some carbon dioxide; this in turn would be fed into the CHP, which would convert it into heat and electricity, with the electricity then being supplied to the National Grid. The development was of a type and size falling within para 3(a) of Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The defendants issued a screening opinion, in which they concluded that the development was not likely to have significant effects on the environment and that no environmental impact assessment (EIA) was required.
The interested party later decided to relocate the CHP to a separate site. It amended its original planning application accordingly and submitted a second application for the CHP site and for an underground pipeline running from one site to the other. The defendants took the view that the development on the CHP site was not of sufficient size to fall within Schedule 2. They did not issue new screening opinions. The defendants considered both applications at the same meeting and resolved to grant planning permission on each.
The claimant applied for judicial review of the planning permissions, contending that the defendants should not have granted them without issuing new screening opinions that considered the effects of the two applications together. She submitted that, when considered with the original application, the development under the second application did fall within Schedule 2. She relied on regulation 7 of the 1999 Regulations, and on government guidance contained in para 46 of Circular 02/99, to the effect that planning authorities should have regard to the possible cumulative effects of development when considering whether significant effects were likely and should not consider a planning application in isolation if it was, in reality, an integral part of a more substantial development.
Held: The claim was dismissed.
(1) No screening opinion had been required for the second planning application. Whether a development fell within Schedule 2 had to be decided strictly by reference to the development specified in the relevant application, although the question of likely environmental effect could be considered more widely and could include reference to other applications that were part of some wider scheme: R v Swales Borough Council, ex parte Royal Society for the Protection of Birds [1991] 1 PLR 6 applied. The parts of Circular 02/99 relied on by the claimant were concerned not with whether an application fell within Schedule 2, but with whether, if it did, there were likely to be significant environmental effects. The reference to considering more than one application together was made in the same context. Likewise, under regulation 7 of the 1999 Regulations, the defendants were concerned only with the “application which is before them for determination”; the question of likely effect arose only if the development in that application was Schedule 2 development. It was not possible to construe regulation 7 so as to encompass the cumulative position since to do so would run contrary to its express wording.
If an applicant for planning permission sought to abuse the position by deliberately splitting a single project into separate planning applications in an attempt to avoid a screening opinion, then it would be open to the secretary of state to direct that the development under one or more of those application should be regarded as EIA development even though it was not within the relevant part of Schedule 2. However, there was no suggestion that the interested party had done this in the instant case; the splitting had occurred purely because of the relocation of the CHP to a different site. The development on the CHP site, under the second planning application, did not fall within the description in para 3(a) of Schedule 2 and the question of a screening opinion simply did not arise.
(2) The defendants had not been required to issue a new screening opinion on the original application, as amended, so as to consider the environmental effects of that application together with those of the second application. Regulation 7 applied to an application “before” a planning authority if it appeared to them that “the development in question” fell within Schedule 2 and had not been the subject of a screening opinion: see para 1(b) of regulation 7. Given the context, the “development in question” could only mean the development that was the subject of the particular application. The original application, although amounting to Schedule 2 development, had already been the subject of a screening opinion such that the requirement in para 1(b) was not met. There had been no material change to the development under the original application, such that it could be said that it was not the same as that which had been screened. Regulation 7 did not require a second screening opinion.
In any event, where a screening opinion had already been conducted when the two elements of development were combined, it was hard to see how a subsequent consideration of the combined effects of the two separate applications could have led to any different conclusion.
Zack Simons (instructed by Richard Buxton, of Cambridge) appeared for the claimant; John Hobson QC and Ned Helme (instructed by the legal department of Breckland District Council) appeared for the defendant; Alex Goodman (instructed by MCP Solicitors, of Thetford) appeared for the interested party.
Sally Dobson, barrister
