The CJEU has clearly stated that the purpose of the EIA Directive cannot be circumvented by the splitting of projects. This approach is seen reflected, for instance, in the decision of the Court of Appeal in R (on the application of Burridge) v Breckland District Council [2013] EWCA Civ 228. There, the appeal judges considered a challenge to the grant of two interlinked planning permissions, one for a biomass renewable energy plant and the other for a combined heat and power plant about 1 km away. They were to be connected by an underground gas pipe to carry the fuel produced by the former between the two sites. It was held that these developments should have been treated as a single project for the purpose of environmental impact assessment.
The claimant in R (on the application of Larkfleet Ltd) v South Kesteven District Council [2014] EWHC 3760 (Admin) applied to quash the decision of the local planning authority (“LPA”) to grant planning permission to the interested party – the county authority – for the construction of a link road, the original intended purpose of which was to bypass the centre of Grantham. Subsequently, a commercial developer applied for planning permission for a major urban extension to Grantham, providing some 3,700 houses. The link road by then was also viewed as serving that urban extension.
One of the claimant’s grounds was that the link road and the urban extension were, in substance, part of one overall package of interconnected components and that the environmental statement submitted by the interested party should have considered the impact of the two jointly, rather than treating the link road as a single project on its own. The court rejected that argument, and dismissed the claim.
The judge acknowledged that a LPA, having taken the proposed development as the starting point, should go on to consider whether any other proposed development in the vicinity should be assessed jointly with it. The test, as stated in Burridge, was whether they ought to be regarded “as part of the same substantial development”. If that test was not satisfied, the LPA should then go on to consider whether any other development should be included in the assessment of cumulative effects. Here, the test was not satisfied.
The developments fell into different categories of infrastructure project, one applicant for planning permission was exercising its functions as a highway authority, the other was a private developer. The link road was needed, whether or not there was an urban extension to Grantham. Each was a single major project likely to have significant environmental effects. There was no question of project splitting. Furthermore, the LPA had gone on to assess the cumulative effects in each case.
John Martin is a planning law consultant
