Monday, 1 November 2010
Shelf life of an EIA
The EIA regulations are silent as to how long a screening direction lasts. There is therefore no ‘sell-by date’ attached to an EIA, but there is of course a well-established rule that the LPA (or other decision-maker) must take into account any change of circumstances between its original assessment of an application and actually issuing a planning permission (see the well-know Kides case).
In R (Mageean) v SSCLG  EWHC 2652), the High Court has quashed an appeal decision granting planning permission for a wind turbine, because the Secretary of State should have reconsidered a screening direction given six years before the appeal decision, when it had been determined that the wind turbine was not EIA development. It was not the lapse of time which led to a need to reconsider the requirement for the screening direction to be reconsidered, but a material change in circumstance in the meantime. A change of circumstances could render a screening opinion out-of-date within weeks but, on the other hand, if there were to be no change of circumstance, the screening opinion might hold good for many years.
The LPA (Caradon DC) had given a screening opinion in 2003 as to whether the proposed wind turbine would be an EIA development. It decided that it would. The developer accordingly requested a screening direction from the Secretary of State who advised that the development was not an EIA development. Three years later, in 2006, an area close to the application site was designated as a World Heritage Site. A planning application for the wind turbine was then made in 2007, which the LPA refused on the ground that it would be detrimental to the appearance and character of the landscape and contrary to development plan policies seeking to protect the landscape including the World Heritage Site.
An appeal against this refusal was allowed in 2009. It was this decision which the claimant sought to quash, arguing that the Planning Inspectorate should have referring the case back to the Secretary of State for a review of the 2003 screening direction because of the lapse of time and the subsequent designation of the World Heritage Site.
The question was whether the change in circumstance could, rather than would, affect the Secretary of State's screening decision. Only he could make that decision. A change of circumstances would not automatically require a reference back to the decision maker. That would depend on the circumstances and the extent to which the development might have a significant effect on the environment. There may be changes in circumstance which would not lead to a different screening decision.
In the present case, the designation of a nearby area as a World Heritage Site was a material change in circumstance and the Planning Inspectorate should have considered whether or not to refer the screening direction back to the Secretary of State for reconsideration on the grounds that the change could affect the screening decision.
© MARTIN H GOODALL
[COMMENT: Tim Webb asks whether I have any thoughts on the shelf life of EIA survey information. On the basis of the case reported above, and also matters I have dealt with myself, I would suggest that the shelf life of EIA information is entirely dependent on the circumstances. If those circumstances have changed, then that EIA information can no longer be relied upon. I suggested to a client in one case that the ecology report ought at least to be revisited due to the lapse of time. They decided not to do so, and as it was not challenegd either by the LPA or by any third party objector, there was no problem. This is really the key to the question. If the LPA raises no objection and if third party objectors are unlikely to make a fuss, then maybe 'old' EIA information can still be relied upon. It is where proposals are controversial and other parties are looking for some way of de-railing the development that you may run into trouble with allegedly out-of-date EIA information.]