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 [2010] 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 A change of circumstances could render a screening opinion out-of-date within weeks but, on the other hand, if there were to be no change of circumstance, the screening opinion might hold good for many years.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.]

Section 73 – Limits to the variation of conditions

I understand the Finney case may be going on to the Supreme Court. I haven't seen this in black and white yet, so wait and see.

The Court of Appeal issued a helpful judgment on 5 November which confirms the correct approach in exercising the power to vary the conditions attached to a planning permission. This was the case of Finney v Welsh Ministers [2019] EWCA Civ 1868. Section 73 of the 1990 Act provides a power to grant planning permission for development without complying with conditions subject to which a previous planning permission was granted. In practice, this allows certain conditions to be removed altogether or to be relaxed or varied. However, the Court of Appeal’s judgment in Finney makes it clear that there is a limit to how far the variation of a condition under section 73 may lawfully go.

The planning permission in question in Finney authorised the installation of two wind turbines with a tip height of up to 100m, and associated infrastructure. This permission was granted subject to 22 conditions. One of these provided that the development was to be carried out in accordance with the approved plans and documents, which showed a wind turbine with a tip height of 100 metres.

The developer subsequently applied under section 73 for the "removal or variation" of that condition to enable a taller turbine type to be erected. A submitted drawing showed a variation of the proposed development so as to permit tip heights for the turbines of up to 125 metres. It is important to note, however, that this variation would have taken the development outside the scope of the development described in the operative wording of the planning permission.

The LPA refused the section 73 application, and the developer appealed to Welsh Ministers (in practice the Planning Inspectorate) against that refusal. Having considered a number of planning issues raised in the appeal, the Inspector allowed the appeal so that the development could be carried out subject to a revised condition that would permit tip heights for the turbines of up to 125 metres. (This also involved varying the operative wording of the permission, so as to remove the words in the description of the development that referred to a tip height of up to 100m for the wind turbines.)

There could be no challenge to the inspector’s planning judgment, but a third party objector (Professor Finney) sought a quashing order in the High Court on the ground that the Inspector had no power to allow the appeal and to grant planning permission for development that was not covered by the description of the development in the body of the original planning permission. The only power, it was argued, was to vary the conditions attached to that development as described in the original permission. The High Court rejected this challenge, noting that the point had not been raised before the inspector. Professor Finney then appealed against that judgment to the Court of Appeal.

In considering the legal issue that this case raised, the Court of Appeal drew attention to a passage from the recent Supreme Court judgment in Lambeth LBC v SSHCLG [2019] UKSC 33, where Lord Carnwath had said: “A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.” Furthermore, it is well-settled law that a condition on a planning permission will not be valid if it alters the extent or the nature of the development permitted: Cadogan v SSE (1992) 65 P & CR 410.

Counsel for Prof Finney had stressed in argument the distinction between the “operative part” or grant of the planning permission on the one hand, and the conditions to which the operative part or grant is subject. The distinction between these two parts of a planning permission is reflected in other provisions of the 1990 Act. This distinction between the operative part or grant, on the one hand, and conditions on the other had been drawn in other cases decided under the Act, for example Cotswold Grange Country Park LLP v SSCLG [2014] EWHC 1138 (Admin) (when Hickinbottom J observed: “… the grant identifies what can be done—what is permitted—so far as use of land is concerned; whereas conditions identify what cannot be done—what is forbidden.”).

The question in the appeal in Finney, therefore, was whether, on an application under section 73, it is open to the LPA (or, on appeal, Welsh Ministers) to alter the description of the development contained in the operative part of the planning permission. Similar challenges on this ground had been upheld in previous cases, such as R v Coventry CC ex p Arrowcroft Group plc [2001] PLCR 7.

Although R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin) was decided the other way, this was on the basis that the precise extent of the description of the consented development in that case (an extensive multi-purpose leisure development that included a “multi-screen cinema”) did not prevent a variation of one of the conditions that had specified a 12-screen cinema with a capacity of 2,000, by substituting under section 73 an increase in the number of screens to 13, with a capacity of 2,400. (The important point was that the operative words of the planning permission itself in that case had referred only to a “multi-screen cinema”, without specifying the number of screens or the seating capacity of the cinemas in the description of the development authorised by the permission.)

Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. On receipt of such an application, section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development. That coincides with Lord Carnwath’s description of the section as permitting “the same development” subject to different conditions. It is notable, the Court of Appeal observed, that if the planning authority considers that the conditions should not be altered, it may not grant permission with an altered description but subject to the same conditions; on the contrary it is required by section 73(2)(b) to refuse the application. That requirement emphasises the underlying philosophy of section 73 (2) that it is only the conditions that matter.

The Court of Appeal therefore allowed this appeal, and quashed the Inspector’s decision because it was beyond her powers.

© MARTIN H GOODALL

How long is an EIA screening direction valid?

On 1 November 2010, I reported on the High Court decision in R (Mageean) v SSCLG ([2010] EWHC 2652) [see “Shelf life of an EIA”]. That decision has now been overturned by the Court of Appeal ([2011] 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 [2003] 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