In deciding whether development proposals would constitute “development” within the meaning given to that term by section 55(1) of the Town and Country Planning Act 1990 – so requiring planning permission – to what extent should a local authority direct its mind simultaneously to the (apparently) separate question whether the proposals would also constitute a project likely to require an environmental impact assessment?
It is notable that the claimant action group in R (on the application of Save Woolley Valley Action Group) v Bath and North East Somerset Council – see PP 2012/111 – also successfully contended that the defendant authority had failed to interpret section 55(1) in such a way as to give effect to Council Directive 85/337/EC (“the EIA Directive”) by omitting to do just that.
In allowing the claim, the court also upheld that contention by the claimant. As far as the EIA Directive was concerned, the poultry units were capable of falling within the wide definition of “project” in Article 1(2) as “the execution of construction works or of other installations or schemes”. Without expressing a concluded view, the court also considered that the relevant project might come within paragraph 1(e) of Annex II to the EIA Directive as “intensive livestock installations. Turning to the regulations at that time transposing the EIA Directive into domestic law, namely the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, on a similar basis the court also considered that the poultry units might fall within Schedule 2. (The relevant floorspace threshold did not apply as the land fell within the definition of a “sensitive area” namely an AONB).
This all being so, the court held that defendant was not entitled to take the approach that, once it had decided that the poultry units did not constitute “development”, it had no further duty to consider their environmental impact. Local planning authorities were bound to give a broad interpretation to the term “development” in section 55(1) so as to include, whenever possible, projects that required an environmental impact assessment. Otherwise, the EIA Directive would not be effectively implemented.
Accordingly, the defendant had misdirected itself by failing to have regard to the obligation to interpret “development” in that way. If it had concluded that the poultry units were a project that required an environmental impact assessment, then the meaning of “development” in section 55(1) was sufficiently broad to encompass the poultry units.
John Martin
