Environmental Impact Assessment an update

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Environmental ImpactAssessment- an update -

• Mrs HARRIET TOWNSEND
• 2-3 GRAYS INN SQUARE

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• On planning we have already legislated to make
  major changes, but in frankness, I believe we
  have much more to do.
• Gordon Brown to the CBI 5th June 2006

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Legislation 2006 included

• 10th August 2006
• S42(1) of the PCPA 2004 brought into force new
  s62 of the TCPA 1990
• SI 2006/1062 amended the GDPO 1995

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Legislation 2006 included

• Effect
• The definition of outline appl has not changed
• The categories of those matters which may be
  reserved is defined Art 3(1) GDPO
• Lpa have greater powers to require additional
  information as part of and in support of an
  application for pp s62(3)
• Unless an appl falls within one of categories
  specified a design and access statement is
  required
• The GDPO Art 3(3)-(5) set out min info required
  for every OL appl

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Legislation 2006 intended

• Intended, at least in part, to provide statutory
  backing to the existing case law in the Rochdale
  line of cases bare outlines are unlikely to
  provide sufficient information to enable EIA to
  be carried out.
• The focus is on making OL permissions more robust
  little attention in legislation or policy given
  to procedures for assessment of reserved matters
  applications.

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Barker

• While the Government was bringing these measures
  into force, the ECJ was looking closely at
  whether the UKs failure to provide for EIA at
  reserved matters stage is a failure fully to
  implement the EIA Directive 85/337/EEC.
• It is Commission v UK and Barker v LB Bromley
  judgment in both given on 4-5-06.

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Barker - facts

• Diane Barker lived nr Crystal Palace where major
  recreational/leisure devt was proposed in an
  outline appl in 1997 under 1988 EIA Regs. No
  EIA at that stage. A limited challenge was
  unsuccessful.
• At reserved matters stage the LB Bromley was
  advised they had no power to require EIA. They
  approved the rm appl in 1999.
• These permissions eventually lapsed during the
  litigation which followed.

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The EIA Directive

• Full title Assessment of the Effects of Certain
  Public and Private Projects on the Environment,
  1985 amended 1997
• It has direct effect and can therefore be relied
  upon by individuals in domestic proceedings
  against the state or emanations of the state (eg
  lpas)
• UK 1988 then 1999 Regs

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The EIA Directive

• whereas certain approved programmes affirm the
  need to take effects on the environment into
  account at the earliest possible stage in all the
  technical planning and decision-making
  processes preamble
• "development consent means the decision of the
  competent authority or authorities which entitles
  the developer to proceed with the project. Art
  1

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The EIA Directive

• Member States shall adopt all measures necessary
  to ensure that, before consent is given, projects
  likely to have significant effects on the
  environment by virtue inter alia, of their
  nature, size or location are made subject to an
  assessment with regard to their effects. These
  projects are defined in Article 4. Art 2(1)
• Annex I projects shall be subjected to
  assessment. Annex II projects shall be subjected
  to assessment where Member States consider that
  their characteristics so require. Art 4
  Schedules 1 and 2 to the 1999 Regs are derived
  from Annex I and II of the Directive.

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Barker -

• B claimed both the outline consent and the
  approval of reserved matters were unlawful.
• The essence of Bs argument was that the Council
  could and should have considered whether EIA was
  required. They should have screened the
  development.

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Barker

• The project was an urban devt project within
  class 10(b) of Annex II to the Directive and
  Schedule 2 to the Regs. In such a case screening
  is required at planning application stage.
• Why not at reserved matters stage? No provision
  is made for this in the UK Regulations. The UK
  argued that the outline planning permission was
  the development consent for the purposes of the
  Directive and that the reserved matters approval
  merely implemented that consent.

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Barker

• ECJ ruled
• Classification of a decision as a development
  consent within Art 1(2) must be carried out
  pursuant to national law in a manner consistent
  with Community law.
• 2. Arts 2(1) and 4(2) of the Directive are to be
  interpreted as requiring EIA to be carried out
  if, in the case of grant of consent comprising
  more than one stage, it becomes apparent, in the
  course of the second stage, that the project is
  likely to have significant effects on the
  environment by virtue inter alia of its nature,
  size or location.

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Surprised?

• The Barker ruling from the ECJ is far reaching in
  its effect but surely not surprising
• Wells v STLGR 2004 ECR I-723
• old mining permissions
• Noble v Thanet DC 2006 Env LR 8
• lpa lawfully carried out screening exercise at
  reserved matters stage
• Commission v UK 2006 QB 764
• infraction proceedings brought on the same
  point as Barker 1 Dec 2003

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Barker -

• House of Lords - 6-12-06. Lord Hope
• Declaration
• By precluding any consideration for the need for
  an EIA at the stage when, following the grant of
  outline planning permission, consideration is
  being given to an application for approval of
  reserved maters the 1988 Regulations failed fully
  and properly to implement the Directive, and
• the Council misdirected itself in law when it
  decided that it had no power to require an EIA to
  be carried out in accordance with the
  requirements of the Directive at that stage. see
  at 30 of 2006 UKHL 52

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Barker

• Other guidance from the unanimous HL
• The outline permission included a standard
  condition requiring details to be submitted to
  and approved by the lpa before development is
  commenced. Any grant of planning permission
  which contains a condition in these terms must be
  regarded as a multi-stage development consent for
  the purposes of the Directive.
• It does not follow however where planning
  consent for a development takes this form, that
  consideration must be given to the need for an
  EIA at each stage in the multi-consent
  process....The need for an EIA at the reserved
  maters stage will depend on the extent to which
  the environmental effects have been identified at
  the earlier stage.
• Paras 21-22

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Barker -

• Other guidance from the unanimous HL
• For schedule 2 devt the authority must decide at
  the outset whether an EIA is needed ie at the
  outline stage
• If sufficient info is given at the outset it
  ought to be possible to determine whether the EIA
  will take account of all the potential
  environmental effects that are likely to follow
  as consideration of the project proceeds to the
  next stage.
• Conditions designed to ensure that the project
  remains strictly within the scope of that
  assessment will minimise the risk that effects
  will not be identifiable until reserved matters.
  It is only if those effects are not identifiable
  until the time of the reserved matters decision
  that the assessment should be carried out in the
  course of that procedure

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Barker -

• R v Rochdale MBC ex pTew (the first of the two
  Rochdale decisions) concerning the adequacy of
  an outline consent Sullivan Js observation that
  if significant adverse impacts on the
  environment are identified at the reserved
  matters stage and it is then realised that
  mitigation measures will be inadequate, the lpa
  is powerless to prevent the development from
  proceeding must now be regarded as unsound. If it
  is likely that there will be significant effects
  on the environment which have not previously been
  identified, an EIA must be carried out at the
  reserved matters stage before consent is given
  for the development.
• para 29 HL

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DCLG

• Letter Colin Byrne of DCLG to Chief Planning
  Officers 30-6-06 gives interim guidance. Interim
  as await outcome of Barker in the House of Lords.
• As at 6-3-07 DCLG hopes to produce new Regs by
  mid-year with Circular Guidance. But another
  Barker is resource-hungry.

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DCLG interim guidance

• It is specific to applications for approval of
  reserved matters.
• As the EIA Directive has direct effect lpas
  should satisfy themselves that they have met the
  requirements of the EIA Directive when
  considering approval of reserved matters even
  thought this is not currently required by UK
  legislation
• This may be required where likely significant
  effects are identified at the rm stage which
  either
• a) were not identifiable or identified at the OL
  stage or
• b) were identifiable but which now require a
  fresh assessment probably because of a
  significant change of circumstances.

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DCLG interim guidance

• At reserved matters stage-
• Where EIA was undertaken provided sufficient
  information given at the OPP stage, further EIA
  is unlikely to be necessary.
• Where EIA not considered necessary - provided
  the screening process at the OPP stage was
  undertaken properly and in accordance with the
  guidance in 02/99 EIA unlikely to be necessary
• Where failed to consider the need for EIA at OPP
  stage the need to revisit EIA at the approval of
  reserved matters stage is most likely to be
  required.

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DCLG interim guidance

• Whenever a lpa receives an appl for approval of
  reserved matters it should screen the development
  again to determine whether all of the likely
  environmental significant effects have been
  considered Where the detail at reserved matters
  has revealed new or additional likely significant
  effects on the environment not identified and/or
  assessed at the OPP stage, the approval of
  reserved matters without obtaining the necessary
  environmental information is likely to be in
  breach of the Directive and thus unlawful.
• The EIA required could take the form of a
  supplemental EIA or addendum to an existing EIA
  but it must be comprehensive.
• If the applicant fails to carry out EIA the lpa
  must either refuse the approval of reserved
  matters or defer determination until an EIA is
  provided.

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What does it all mean?

• The grant of planning permission in the UK is or
  may be a multi-stage development consent.
• LPAs should screen applications rigorously at the
  first stage of this process but will also need to
  screen at later stages.
• If, therefore, they decide that development is
  not EIA development they will need to know why
  that decision was made in order reliably to
  assess whether the later stage of consent raises
  new and previously unassessed likely significant
  impacts.
• LPAs should use their powers to obtain sufficient
  information at the first stage of the consent
  process to ensure EIA is comprehensive and that
  conditions hold the consent within the scope of
  that assessed.

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What should lpas do?

• Screening procedures need to be robust. Adopt a
  stage by stage process as follows
• Must screen if the project is Schedule 1 or
  Schedule 2 development. This is a question of law
  Goodman v Lewisham 2003 Env LR 28
• 2. If the project is within Schedule 1 it is EIA
  development. If it is Schedule 2 devt assess
  whether it is likely to have significant effects
  on the environment by virtue of factors such as
  its nature, size or location taking into account
  such of the criteria in Schedule 3 as are
  relevant to the development. This is a question
  of judgment.

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What should lpas do?

• Ensure experienced officer with delegated power
  to adopt a screening opinion carries out the
  screening process. Always record reasons for the
  screening decision - whether or not required by
  Regs. Note on the file which category of
  Schedule 2 the development falls within.
• If EIA is necessary at reserved matters but is
  not followed by the developer, it may be
  necessary to refuse permission.

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What should lpas do

• Consider carefully how to use their powers, in
  particular those most recently granted, to secure
  sufficient information at the outline stage, and
  to control the consent by condition so as to
  minimise the number of occasions on which it will
  be necessary to re-open the EIA process at
  subsequent stages of the development consent.

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Unanswered questions 1

• Faced with a lpas requirement for EIA at the
  reserved matters stage, can developers request a
  screening direction of the SoS? Probably (in my
  opinion). However, interim guidance from DCLG
  does not deal with or recognise this. An
  alternative is for the developer to appeal the
  refusal of planning permission and hope for a
  negative screening decision from the SoS on
  appeal.

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Unanswered questions 2

• Can the details submitted at reserved matters
  re-open the principle of development? The EIA
  required, if any, at a stage subsequent to the
  outline or initial stage, may (but is unlikely
  to) reopen the principle of development. Much
  greater use is likely to be made of scoping
  opinions to guide the content of EIA required at
  a second or subsequent stage.

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Unanswered questions 3

• Can the need for an EIA arising at the reserved
  matters stage reopen the question whether an EIA
  should have been obtained at the outline stage?
  In principle, yes.

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Unanswered questions 4

• What about other conditions reserving details for
  subsequent approval? Any condition which reserves
  details for subsequent approval and which
  withholds the right to develop pending approval
  represents a stage in the development consent
  which could in theory give rise to the need for
  EIA of the implications of those works.
• eg where a scheme for drainage works is
  required to be submitted for approval as in
  model condition40

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Unanswered questions 5

• Where a project with outline consent is to be
  developed in phases and a reserved matters
  application is made in relation to part, is the
  development consent the part or the whole? Take
  care with this but probably the part, plus any
  parts already permitted there is no need to
  speculate about the future.

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• - Mrs HARRIET TOWNSEND -