Wednesday, 10 August 2011
How long is an EIA screening direction valid?
On 1 November 2010, I reported on the High Court decision in R (Mageean) v SSCLG ( EWHC 2652) [see “Shelf life of an EIA”]. That decision has now been overturned by the Court of Appeal ( EWCA Civ 863).
As I pointed out, the EIA regulations are silent as to how long an environmental statement lasts. There is therefore no ‘sell-by date’ attached to an environmental statement, and the same applies to a screening opinion or screening direction. The High Court decision in Mageean confirmed that it was not the lapse of time (six years in this case) which may lead to a need for a screening direction to be reconsidered, but a material change in circumstances 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 A change of circumstances could render a screening opinion out-of-date within weeks but, on the other hand, if there were to be no change of circumstance, the screening opinion might hold good for many years.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 Court of Appeal decision has not disturbed that basic rule. The Court of Appeal simply decided that the change of circumstance in question (the designation of a nearby World Heritage Site) was not a change that required the screening direction to be revisited, and for that reason they overturned the High Court decision, which had quashed a permission for a wind turbine given on appeal.
The Court of Appeal determined that the planning inspector's decision not to ask the Secretary of State to reconsider the screening direction had not been irrational, in view of the fact that he had concluded that the proposed wind turbine would not have a detrimental effect on the World Heritage Site and he had not been asked by any party to the appeal (including the objectors) to refer the screening direction back to the Secretary of State.
One point where the Court of Appeal seems to have differed materially from the High Court’s basic approach to the issue was in relation to the question as to whether the change in circumstances ‘could’ or ‘would’ lead to a different view being taken in the event of the screening direction being reconsidered. The High Court had decided that 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. The High Court had held that 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. The Court of Appeal disagreed with this approach. The question is whether the change of circumstance would have led to a different view being taken on a reconsideration of the screening direction. In this case, the Court of Appeal decided, it would not have done so.
In taking this approach, the Court of Appeal seems to have relied on their earlier decision in Evans v First Secretary of State  EWCA Civ 1523, in which they had ruled that an inspector should invite the Secretary of State to reconsider a screening direction if it appears that he had proceeded under some important misapprehension as to the nature of the proposed development or an underlying assumption, or if other material facts come to light that appear to invalidate the basis of the Secretary of State's original screening direction.
[Practitioners should be aware that the 1999 regulations have now been replaced by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824). However, the new regulations do not affect the ruling reported above.]
© MARTIN H GOODALL