Urban development project – EC directive – Discretion
The legality of a planning permission is challenged by conservationists. The basis of the complaint is that the planning authority did not consider whether the developer should have submitted an environmental impact assessment in accordance with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (now 1999).
It will be recalled that the need for such an assessment arises if the proposed development falls into Schedule 1 or 2 to the regulations, the list in Schedule 1 being limited to manifestly hazardous developments. A development listed in Schedule 2 must be one that is additionally likely, on the facts, to have a significant effect upon the environment.
The main points to be gathered from the challenger’s successful appeal to the House of Lords in Berkeley v Secretary of State for the Environment [2000] EGCS 86 (a mandatory read for planners) are:
1. for the purpose of Schedule 2, the duty to consider whether the development is likely to have a significant environmental effect arises once it becomes arguable that there is such a likelihood; and
2. despite the discretionary nature of the relief afforded under section 288 of the Town and Country Planning Act 1990, there will seldom, if ever, be a case for treating other assessment procedures, no matter how conscientiously undertaken, as acceptable substitutes for that laid down by the regulations in accordance with the directive.
Berkeley was concerned with a perceived threat to the relatively humble habitat afforded by a short stretch of the Thames foreshore – with the possible consequence that the stickleback will join the London sparrow as a proper object of concern. Further implications are considered by Martin Edwards and John Martin in
Related item:
PP 2002/94
Urban development project – EC directive – Discretion
The legality of a planning permission is challenged by conservationists. The basis of the complaint is that the planning authority did not consider whether the developer should have submitted an environmental impact assessment in accordance with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (now 1999).
It will be recalled that the need for such an assessment arises if the proposed development falls into Schedule 1 or 2 to the regulations, the list in Schedule 1 being limited to manifestly hazardous developments. A development listed in Schedule 2 must be one that is additionally likely, on the facts, to have a significant effect upon the environment.
The main points to be gathered from the challenger’s successful appeal to the House of Lords in Berkeley v Secretary of State for the Environment [2000] EGCS 86 (a mandatory read for planners) are:
1. for the purpose of Schedule 2, the duty to consider whether the development is likely to have a significant environmental effect arises once it becomes arguable that there is such a likelihood; and
2. despite the discretionary nature of the relief afforded under section 288 of the Town and Country Planning Act 1990, there will seldom, if ever, be a case for treating other assessment procedures, no matter how conscientiously undertaken, as acceptable substitutes for that laid down by the regulations in accordance with the directive.
Berkeley was concerned with a perceived threat to the relatively humble habitat afforded by a short stretch of the Thames foreshore – with the possible consequence that the stickleback will join the London sparrow as a proper object of concern. Further implications are considered by Martin Edwards and John Martin in Planning for change, Estates Gazette 19 August 2000, p72.
Related item:
PP 2002/95
