Where it appears to a local planning authority (“LPA”) that it has received a planning application in respect of a development falling within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”) it must adopt a “screening opinion”, ie a written statement of its opinion as to whether the proposed development is an “EIA development”. In this context, that means a development likely to have significant effects on the environment by virtue of factors such as its nature size or location. Any EIA development requires the LPA to carry out an environmental impact assessment.
It is settled law that a LPA, in adopting a screening opinion, may have regard to any proposed mitigating measures, provided that they are sufficiently specific, that they are available and that there is no real doubt about their effectiveness. (See, in particular, Gillespie v First Secretary of State [2003] EWCA Civ 30, though be conscious that there the appeal judges upheld the conclusion of the trial judge, namely that the special and elaborate mitigating measures proposed ought to have been discussed and assessed within the context of the EIA procedure.)
In R (on the application of Howard and another) v Wigan Council [2014] EWHC 4296 (Admin) the LPA, after adopting a negative screening opinion, granted planning permission for the erection of 39 dwellings on a site where there was a possibility of some historical contamination. A condition was imposed requiring the development to be carried out “in full accordance with the approved Remediation Strategy”. The claimants applied to quash the grant of planning permission on the ground that the screening opinion was flawed. They argued, principally, that the information suggested that the contamination of the site was sufficiently serious and poorly understood to necessitate the undertaking of an EIA before the grant of planning permission.
The court dismissed the claim, holding that screening opinion was not flawed. There was a very substantial body of technical and other documentation in relation to the environmental impacts of the development proposals before the LPA. There was nothing overly complex about the remediation measures. They simply involved the removal of the existing topsoil, the capping of the land and the relaying of the topsoil after having been checked for contamination. The conclusion reached on whether an EIA was required was not arguably perverse, and adequate reasons for it had been given.
John Martin is a planning law consultant
