John Martin looks at the effect of the latest regulations in the area of environmental impact assessment
Key points
- Amendments recently made to the 2011 Regulations
- A reminder of the secretary of state’s residual power
The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”) presently implement, in relation to town and country planning matters, Council Directive 2011/92/EU (“the EIA directive”) in England. They transcribe into domestic law, in particular, the requirement that development consent for projects that are likely to have significant effects on the environment should be granted only after an assessment of those effects.
The 2011 Regulations have recently been amended by the Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2015 (“the 2015 regulations”) with a view to reducing the numbers of projects that have to be screened. The 2015 Regulations came into force on 6 April 2015.
The amendments
By way of background, where a proposed development falls within the definition of “Schedule 2 development” for the purposes of the 2011 Regulations, the local planning authority (“LPA”) must then go on to decide whether the development is likely to have significant effects on the environment by virtue of factors such as its size, nature or location.
A development falls within the definition if: (a) it matches one or more of the descriptions set out in column 1 of the table in Schedule 2; and (b) either any part of the development is to be carried out in a sensitive area or any applicable threshold or criterion in the corresponding part of column 2 of the table is respectively exceeded or met in relation to the development.
If it concludes that it is likely to have significant effects, the LPA must adopt a screening opinion to that effect. The development is then an EIA development for the purposes of the 2011 Regulations, and an environmental impact assessment must be carried out.
The changes made by the 2015 Regulations relate only to the category of developments headed “infrastructure projects” in column 1 of the table in Schedule 2 to the 2011 Regulations.
Those changes are as follows: (i) in the case of industrial estate development projects, the threshold for screening is raised from areas exceeding 0.5 hectares to areas exceeding five hectares; and (ii) in the case of urban development projects, the threshold of areas exceeding 0.5 hectares is raised and amended such that screening will be required if the project includes more than one hectare of development that is not dwellinghouse development, or the project includes more than 150 dwellinghouses, or the overall area of the project exceeds five hectares.
For the purpose of drafting integrity, the 2015 Regulations go on to provide expressly that the screening threshold of areas exceeding 0.5 hectares for the construction of intermodal transshipment facilities and of intermodal terminals remains unchanged. The 2015 Regulations also set out a number of transitional and savings provisions.
What should not be forgotten is that regulation 4(9) of the 2011 Regulations grants the secretary of state what has been described as a “residual” power to direct that a development be treated as an EIA development where it satisfies the requirement set out at (a), but fails to satisfy the requirement set out at (b). The effect of such a direction is to require the submission of an environmental statement by the applicant for planning permission, and the carrying out of an environmental impact assessment. But it would seem that the secretary of state cannot be compelled to make such a direction.
Threadneedle
In Threadneedle Property Investments Ltd v Southwark London Borough Council [2012] EWHC 855 (Admin); [2012] PLSCS 82 the proposed development matched the description “urban development project” in column 1 of the table in Schedule 2, but it failed to meet the (then) applicable threshold in the corresponding part of column 2 in that its site did not exceed 0.5 hectares. The claimant, an objector, wrote to the secretary of state requesting him to call in the application for his own decision under section 77 of the Town and Country Planning Act 1990, and on doing so to make a direction under the predecessor provision to regulation 4(9) of the 2011 Regulations.
The secretary of state chose not to call in the planning application, and declined to consider whether a direction should be made. The LPA later granted planning permission. The claimant sought judicial review of the secretary of state’s decision, contending that he had erred in law by not considering whether he should make a direction.
The court rejected the claim, holding that there was no general obligation on the secretary of state to consider making a direction in any specific case. The onus was on anyone seeking such a direction to prevail on him, in clear and unambiguous terms, to make one. When this happened, the secretary of state was empowered to make a declaration, but he was not under a duty to do so. Furthermore, it was a power to be exercised only in an exceptional case.
Here, the request for a direction was coupled to a request for a call in, and it was clearly conditional on the request for a call in being accepted. There was no effective application to him to exercise his power. Accordingly, the secretary of state had not erred in law.
Notwithstanding this, it has also been pointed out judicially that where an applicant for planning permission seeks to abuse the position by splitting a single development project into separate planning applications in an attempt to avoid a screening opinion being adopted, regulation 4(9) of the 2011 Regulations may provide an answer for objectors.
John Martin is a planning law consultant
