EIA requirements clarified

In a judgement delivered on 29 June, in R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869, the Court of Appeal has confirmed the scope of the test to be applied in deciding whether an Environmental Impact Assessment is required. This first stage in the process is known as a ‘screening opinion’; it tells applicants whether or not they need go to the trouble and expense of submitting an EIA. The Secretary of State also has power under these provisions to make a screening direction. His decision is governed by the same rules.

In this case, the claimant had sought to quash a decision of the Secretary of State giving a screening direction by which he stated that a proposed residential development (for retirement homes) was not likely to have "significant effects on the environment" for the purposes of the Environmental Impact Assessment Regulations 1999. It followed that the proposed development was not a development requiring an Environmental Impact Assessment and so did not require the EIA procedure under the 1999 Regulations to be followed before a planning permission could be granted.

Development requiring an EIA is either:

"(a) Schedule 1 development (i.e. projects specifically listed in that schedule); or

(b) Schedule 2 development - likely to have significant effects on the environment by virtue of factors such as its nature, size or location."

Circular 02/99 Environmental Impact Assessment gave guidance on the application of the Directive and Regulations, and explained that EIA will be needed for Schedule 2 developments in three main types of case:
a. for major developments which are of more than local importance;
b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations; and
c. for developments with unusually complex and potentially hazardous environmental effects.

The circular went on to say that the number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment.

The Court reviewed the previous judgments on this topic, and held that what emerges is that the test to be applied is: "Is this project likely to have significant effects on the environment?" That was clear from European and national authority, including the guidance issued by the European Commission. The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance, and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. Only if there is a manifest error of assessment will the ECJ intervene.

The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker.

Applying that approach to facts of the instant case, the Court had no doubt that the Planning Inspectorate (acting on behalf of the Secretary of State) was entitled to conclude that the proposed redevelopment would not have significant effects on the environment. A checklist was completed and no complaint is made about its contents. Judgment was exercised and reasons given for the decision, which justified the conclusion reached. The Court pointed out that the application for planning permission in this case did not involve the uncertainties which had presented difficulties of analysis in some cases in the past. Moreover, judgment was exercised, not at the early stage of the procedure when such decisions are often made, but after full consideration of the planning issues by the local planning authority and also by an Inspector appointed by the Secretary of State. Full information as to the nature of the proposal and its likely effects was available.

So, to summarise, the test is not whether the effect of a development is one that will have an influence on the decision as to whether planning permission should be granted, but whether it is a project likely to have significant effects on the environment. Third party objectors, like the claimant in this case, will not easily overturn planning permissions or planning appeals on the grounds that there should have been an EIA unless the “significant effects” test is met.

© MARTIN H GOODALL