The rules governing the necessity for an Environmental Impact Assessment (EIA) are contained in the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the Regulations). It is mandatory to prepare an EIA for any development falling within Schedule 1 to the Regulations. However, problems can arise when a development falls within Schedule 2.
Under Schedule 2, a decision as to whether or not an EIA is required for a proposed development can be made at various stages. A developer might submit it at the time of the application, or might request a screening opinion from the local planning authority as to whether an EIA will be needed. A local planning authority may determine that an EIA is required upon receipt of a planning application, or the Secretary of State may do so where an application has been called in for his own determination or is before him on appeal.
An EIA may be required where: a Schedule 2 development is located wholly or part in a sensitive area (as defined in the Regulations); or it meets one of the relevant criteria; or it exceeds one of the relevant thresholds. Schedule 3 of the Regulations identifies the criteria, which include the size of the development, its use of natural resources, the quantities of pollution and waste generated, the environmental sensitivity of the location and the characteristics of its potential impact, such as its magnitude and duration.
Key factors to be considered include circumstances where proposed developments are of more than local importance, impinge on particularly environmentally sensitive or vulnerable locations, or will result in unusually complex or potentially hazardous environmental effects.
Challenges to the need for an EIA have been many and varied. In R (on the application of Anderson and Others) v York City Council [2005] All ER (D) 85 (Jun), the planning authority had granted planning permission for the redevelopment of a leisure centre and coach park in York. This involved the construction of apartments, a hotel and a community swimming pool. The claimant challenged the conclusion of the planning officer that the combined proposals were not likely to have significant effects on the environment. She also maintained that he had wrongly assumed that the imposition of conditions would enable the elimination or sufficient mitigation of the adverse environmental effects, and that he had failed to apply the Regulations so as to take proper account of the scale of the development and the sensitivity of its location.
The court dismissed the claim, holding that it was a matter for the local planning authority to determine. In the court’s view, the officer had been possessed of sufficient information to reach a valid screening opinion and had been entitled to impose conditions to mitigate any adverse environmental effects. His approach complied with the Regulations and policy guidance in that regard.
This case makes it clear that the courts are firmly of the view that a screening opinion is a matter for the local planning authority. In this instance the court was satisfied that the correct approach had been taken by the planning officer.
In less clear-cut cases, whether a court will intervene will depend upon the reasonableness of the planning officer’s decision, in the light of all the circumstances concerning the proposals and materials submitted with the application.
Gill Castorina is an associate at Paul Hastings Janofsky & Walker (Europe) LLP
The rules governing the necessity for an Environmental Impact Assessment (EIA) are contained in the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the Regulations). It is mandatory to prepare an EIA for any development falling within Schedule 1 to the Regulations. However, problems can arise when a development falls within Schedule 2.
Under Schedule 2, a decision as to whether or not an EIA is required for a proposed development can be made at various stages. A developer might submit it at the time of the application, or might request a screening opinion from the local planning authority as to whether an EIA will be needed. A local planning authority may determine that an EIA is required upon receipt of a planning application, or the Secretary of State may do so where an application has been called in for his own determination or is before him on appeal.
An EIA may be required where: a Schedule 2 development is located wholly or part in a sensitive area (as defined in the Regulations); or it meets one of the relevant criteria; or it exceeds one of the relevant thresholds. Schedule 3 of the Regulations identifies the criteria, which include the size of the development, its use of natural resources, the quantities of pollution and waste generated, the environmental sensitivity of the location and the characteristics of its potential impact, such as its magnitude and duration.
Key factors to be considered include circumstances where proposed developments are of more than local importance, impinge on particularly environmentally sensitive or vulnerable locations, or will result in unusually complex or potentially hazardous environmental effects.
Challenges to the need for an EIA have been many and varied. In R (on the application of Anderson and Others) v York City Council [2005] All ER (D) 85 (Jun), the planning authority had granted planning permission for the redevelopment of a leisure centre and coach park in York. This involved the construction of apartments, a hotel and a community swimming pool. The claimant challenged the conclusion of the planning officer that the combined proposals were not likely to have significant effects on the environment. She also maintained that he had wrongly assumed that the imposition of conditions would enable the elimination or sufficient mitigation of the adverse environmental effects, and that he had failed to apply the Regulations so as to take proper account of the scale of the development and the sensitivity of its location.
The court dismissed the claim, holding that it was a matter for the local planning authority to determine. In the court’s view, the officer had been possessed of sufficient information to reach a valid screening opinion and had been entitled to impose conditions to mitigate any adverse environmental effects. His approach complied with the Regulations and policy guidance in that regard.
This case makes it clear that the courts are firmly of the view that a screening opinion is a matter for the local planning authority. In this instance the court was satisfied that the correct approach had been taken by the planning officer.
In less clear-cut cases, whether a court will intervene will depend upon the reasonableness of the planning officer’s decision, in the light of all the circumstances concerning the proposals and materials submitted with the application.
Gill Castorina is an associate at Paul Hastings Janofsky & Walker (Europe) LLP
