The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”) continue to apply in Wales, albeit having been revoked in 2011 in England and replaced. References below, therefore, are to the Regulations.
The decision in Gregory v Welsh Ministers [2013] EWHC 63 (Admin) serves as a reminder of the principles relating to environmental impact assessment (“EIA”) where an appeal is lodged on the refusal, or non-determination, of a planning application unsupported by an environmental statement and in respect of which the local planning authority (“LPA”) has issued a negative screening opinion. The development in this case – the installation of a wind farm – fell within Schedule 2 to the Regulations but the LPA had concluded that it was unlikely to have significant effects on the environment.
The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”) continue to apply in Wales, albeit having been revoked in 2011 in England and replaced. References below, therefore, are to the Regulations.
The decision in Gregory v Welsh Ministers [2013] EWHC 63 (Admin) serves as a reminder of the principles relating to environmental impact assessment (“EIA”) where an appeal is lodged on the refusal, or non-determination, of a planning application unsupported by an environmental statement and in respect of which the local planning authority (“LPA”) has issued a negative screening opinion. The development in this case – the installation of a wind farm – fell within Schedule 2 to the Regulations but the LPA had concluded that it was unlikely to have significant effects on the environment.
The developer appealed to the Welsh Ministers, on the LPA’s failure to issue a decision notice within the relevant time limit. The inspector quite properly asked himself whether the application was an EIA application, and went on to conclude that it was not – so agreeing with the LPA. The claimant contended that this was in breach of regulation 9(2) of the Regulations.
Regulation 9(2) of the Regulations obliges an inspector, when dealing with an appeal in respect of which a question arises as to whether the application is an EIA application and it appears to the inspector that it may be, to refer the question to the Welsh Ministers. He must not then determine the appeal, except by refusing planning permission, before he receives a screening direction from the Welsh Ministers.
The court quashed the planning permission, accepting the claimant’s argument. By purporting to answer himself the question whether the application was an EIA application, the inspector had impermissibly usurped the function of the Welsh Ministers. The judge also rejected an argument that the negative screening opinion issued by the LPA was determinative of the fact that the application was not an EIA application. (In other words, not having been challenged by judicial review, the negative screening opinion remained fully effective and valid.) This, he stated, reflected a misunderstanding of the way in which the Regulations work.
While the adoption by a LPA of a positive screening opinion is conclusive – subject to any screening direction by the Welsh Ministers – the adoption of a negative screening opinion is not. That is the effect of the Regulations.
John Martin
