How far has English planning law been affected by the EEC requirement that major projects must undergo “environmental impact assessments”?
A year has now passed since the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 came into force (on July 15 1988). These regulations implement the European Community’s Directive on Environmental Assessment (EEC/85/337).
A series of written answers to parliamentary questions given in the House of Commons on May 4 1989 by Michael Howard MP, the minister of state responsible for planning, show the impact that these regulations have made on the development process in their first year of operation (Official Report — Hansard — vol 152, cols 246-248). In 31 cases an application for development to a local planning authority has been accompanied by an environmental statement. In a further 17 cases a direction has been sought from the Secretary of State as to whether an assessment is required and he has required an assessment in eight of those cases. In addition, there are five cases where the local planning authority has opined that an assessment is required.
One of the more controversial cases, where the Secretary of State has directed that an assessment is not required, has been the proposed development of a 200,000-sq ft retail park comprising restaurants, housing, hotel, car parks, leisure facilities etc in Nottinghamshire. On the other hand, assessments have been required in respect of proposed developments of business parks in Lincoln and at Donington Park, Leicestershire. A shopping centre in Lee Cross, Newham, London, must be assessed but not a shopping complex in Iver, Bucks.
It is clearly not a simple matter for the developer to determine whether an assessment is required.
The regulations
The regulations provide that, for certain types of project, information about the environmental effects must be provided by the developer and taken into account by the local planning authority before planning permission is granted. Further, they provide that other bodies with environmental responsibilities, such as the Nature Conservancy Council, shall be notified of the application and provide information.
The European Community Directive does not apply solely to projects which fall under the control of the planning Acts. Some projects which fall within the remit of the Departments of Transport and Energy, for example, will also be subject to assessment. Separate procedures are being set up to deal with these and they are not covered by this article.
Projects to be assessed
The projects which fall within the ambit of the regulations are in two categories and are set out in Schedules 1 and 2. Projects which fall within Schedule 1 must be assessed. So an authority must take an assessment into account before granting permission. Projects falling within Schedule 2 will be assessed where it is likely that they will have significant effects on the environment by virtue of such factors as their nature, size or location.
A circular issued by the Department of the Environment and the Welsh Office, Environmental Assessment (15/88; WO23/88), sets out a test for determining whether a Schedule 2 development is likely to have significant environmental effects. It indicates that there are three types of project where this is likely to be the case. These are:
(1) projects of more than local importance;
(2) projects on a smaller scale in particularly sensitive or vulnerable locations;
(3) projects with unusually complex and potentially adverse effects.
The circular also sets out indicative thresholds and criteria for the identification of projects requiring environmental assessment (Appendix A). For example, under the heading of agriculture, it indicates that new pig-rearing installations will not generally require assessment, except where they are designed to house more than 400 sows or 5,000 fattening pigs.
Schedule 1 includes projects under these headings:
(1) crude oil refineries;
(2) thermal power stations with a heat output of 300 megawatts or more, other than nuclear power stations;
(3) installations for the permanent storage or final disposal of radioactive waste;
(4) integrated works for the initial melting of cast-iron and steel;
(5) installations for the extraction, processing, and transformation of asbestos;
(6) integrated chemical installations;
(7) special roads, long-distance railway lines, aerodromes with basic runways of 2,100m or more;
(8) trading ports and inland waterways which permit the passage of vessels over 1,350 tonnes;
(9) waste-disposal installations;
(10) land fill.
Schedule 2 includes projects under the following headings:
(1) agriculture;
(2) extractive industry;
(3) energy industry;
(4) processing of metals;
(5) glass making;
(6) chemical industry;
(7) food industry;
(8) textile, leather, wood, and paper industries;
(9)rubber industry;
(10) infrastructure projects, including industrial estate development projects and urban development projects;
(11) other projects including holiday villages, car-racing tracks, installations for waste disposal, not in Schedule 1;
(12) knackers’ yards;
(13) modifications of developments which fall within Schedule 1.
The Secretary of State has power to exempt any developments from the effect of the regulations.
Environmental statements
It is primarily the duty of the applicant for planning permission to produce an environmental statement. However, a duty is imposed on other specified bodies to consult an applicant and provide any information, other than confidental information, which is relevant to the preparation of the statement. These bodies are: bodies required to be notified under article 15 of the General Development Order (amended by SI 1986 no 435); any principal council for the area where the land is situated (if not the local planning authority); the Countryside Commission; the Nature Conservancy Council; and, in certain cases involving mining, manufacturing industry or waste disposal, Her Majesty’s Inspectorate of Pollution.
The statement itself may comprise a single document or a series of documents which contain an assessment of the likely impact of the development on the environment. The information required is set out in Schedule 3 to the regulations. The statement must contain a description of the development covering site, design, and size or scale; the data necessary to identify and assess the main environmental effects; a description of the likely effects by reference to the possible impact on human beings, flora, fauna, soil, water, air, climate, the landscape, the interaction between any of the foregoing, material assets and the cultural heritage. Any measures to avoid, remedy or reduce the impact must also be included. Finally, all this information must be summarised in non-technical language.
A variety of further information may be provided covering such matters as: the physical characteristics of the proposed development; the land-use requirements during construction and operational phases; the main characteristics of the production processes involved; expected residues and emissions; the main alternatives to the proposed development and the reason for selecting this one; the likely effects on the environment resulting from the use of natural resources and emission of pollutants; the forecasting methods used to assess the impacts and any difficulties, such as technical deficiencies or lack of know-how, encountered in compiling the statement. Again, any additional information must be summarised in non-technical language.
Procedure
1 Pre-application determination
In the first instance, it might not be easy to determine whether an environmental statement is required. It is therefore provided that a prospective applicant may apply to a local planning authority for a determination of this question. Such a request must be accompanied by a plan, a description of the development and the likely environmental effects, and any other information the applicant may wish to provide. The authority must reply within three weeks of the request, unless the applicant agrees to a longer period, giving full reasons if they require a statement to be submitted. Their opinion, and reasons, if any, must be made available for public inspection. The applicant has a right of appeal to the Secretary of State against an authority’s opinion or in cases where the authority fails to reply within the requisite period. Similar periods and rules apply to the Secretary of State’s reply.
2 Procedure to facilitate preparation of environmental statements
A prospective applicant may notify an authority that a Schedule 1 or 2 application is to be made and that a statement is to be submitted. This notice must identify the land and the type of development and the main environmental consequences to be covered in the statement. Where such a notice has been given, or a direction been made, the authority must then notify the bodies referred to above.
If an application is made without a statement, the authority has three weeks in which to require one. The applicant has three weeks from the date of the authority’s decision to decide whether to appeal against it or to provide a statement. If no response is made, then permission is automatically refused. The Secretary of State has general power to require environmental statements to be prepared on any appeals coming before him. In general, all developments which are, at any stage, accompanied by an environmental statement, must comply with publicity procedures and must be notified to the Secretary of State.
The time allowed for an authority to consider an application for planning permission, accompanied by an environmental statement, is 16 weeks instead of the normal eight weeks.
Local authorities’ own developments
Where authorities are undertaking their own developments, they must not, in appropriate cases, pass a resolution without first taking the environmental information into account. They must also consult the bodies mentioned in the regulations. If there is any doubt on the need for environmental information to be considered they may apply to the Secretary of State for a direction.
Simplified planning zones and enterprise zones
Clearly, separate provisions have been required for the application of the regulations in simplified planning zones and enterprise zones. The position has now been clarified by a DOE circular issued on November 25 1988 (Circular no 24/88): Environmental Assessment of Projects in Simplified Planning Zones and Enterprise Zones.
In the former (SPZs), an assessment must be made in respect of all Schedule 1 projects. Two alternative approaches are available in respect of Schedule 2 projects. Where an SPZ scheme prescribes the particular types of development permitted, then the authority may either exclude all Schedule 2 type developments or exclude developments which, in their opinion, would be likely to give rise to significant environmental effects. In all other SPZs, a provision will need to be included in the scheme requiring developers to establish with the authority whether an assessment is required.
All enterprise zones in existence predate the implementation of the directive; therefore the circular states the formal position that no provision needs to be made to amend those general permissions. However, it contemplates that, in the event of any new enterprise zones being designated, provisions similar to those for SPZs will be implemented.
The two circulars, referred to above, provide some assistance for the developer in interpreting the regulations. Additionally, a revision of an advisory booklet, first issued in 1986 to assist with the application of the regulations, has been promised by the Department of the Environment but is still awaited.
Finally, it should be noted that the regulations and circulars discussed in this article have no application to projects which are promoted by a private Act of Parliament, such as the King’s Cross Bill presently being promoted by BR.
