Environmental Impact assessment: Tips to help avoid a legal challenge to a planning permission

The Office of the Deputy Prime Minister recently published, largely for the benefit of local planning authorities, what it describes as an "aide memoire" to frequently asked questions about the Environmental Impact Regulations 1999 and the requirements the Regulations place on local planning authorities and developers.

The note stresses that the guide does not offer definitive guidance and is not a substitute for the Regulations or for guidance provided in the official Departmental Circular (DETR Circular 02/99, Environmental Impact Assessment). However, what it does, by its publication, is to recognise how case law over the past 5 years has shaped the route that developers need to be aware of when seeking to promote development which does, or may, require an Environmental Impact Assessment (EIA). This feature is intended as a helpful summary of the ODPM's note, for developers and others in the industry.

1. What do the Regulations require?

1.1 For qualifying projects they require a local planning authority (LPA) to consider, first, whether a proposed project is likely to have a significant effect on the environment. If so, the authority must ensure that the applicant carries out an assessment and submits to the LPA a report that identifies, describes and assesses the effects that the project is likely to have on the environment: the Environmental Impact Assessment (EIA), and the Environmental Statement (ES).

1.2 The ES has to address the direct and indirect effects of the development on a number of factors including the population, air quality, climatic factors, landscape and archaeology. Full details of the information that has to be included are listed in the Regulations. The ES must also contain a non-technical summary so that lay persons can understand what is being proposed and its likely effects.

1.3 Members of the public, and statutory consultees, will be given the opportunity to comment on the ES. Before any decision to approve the application may be taken, the LPA must take into account the ES and any representations made about the environmental effects by the public or consultees, and it must state in its decision that it has done so.

2. Is there a standard format for an ES?

There is no prescribed format. But in the case of Berkeley v SSETR (2000), the House of Lords commented that an ES must not be a paper chase. Lord Hoffman said, "the point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language."

3. What action does the LPA have to take?

The LPA's role involves "screening" to determine whether a project requires EIA; "scoping" to advise the applicant of the likely, significant effects on the environment that should be addressed in the ES; consultation with statutory consultees, members of the public and others who may have views on the proposal and the ES; and evaluation of the environmental information presented in the ES and any representations made on it prior to making its decision.

4. Screening

4.1 An applicant for planning permission may ask the LPA for a "screening opinion" before submitting the application. If it receives such a request, the LPA has to issue an opinion within 3 weeks of the date of receipt. A copy of the opinion has to be made available for public inspection.

4.2 It is the responsibility of the LPA to ensure that planning applications are "screened" to establish whether an EIA is required. Normally this will be carried out by the officer dealing with the planning application, but the decision is taken on behalf of the LPA. If the decision is to be made by officers, it is important to ensure that they have delegated authority to do so.

4.3 In R v St Edmundsbury Borough Council, ex parte Walton (1999) a decision of the LPA to grant planning permission was overturned, because a decision not to require EIA was taken by an officer who had no formal delegation.

5. Does the screening opinion have to give reasons for the decision?

5.1 Where an EIA is required, the LPA must provide a written statement giving full reasons for its decision. There is no similar requirement where the LPA decides that EIA is not required. However, the Department's guidance suggests that it would be prudent for the LPA to make and retain for its own use a clear record of the issues considered and the reason for its decision.

5.2 To avoid unnecessary delays it's important that developers maintain contact with LPAs to issue screening opinions within the statutory 3-week period. The Regulations do, however, allow for the LPA and the applicant to agree a longer period, without such agreement, the authority has no legal authority to request an EIA beyond the 3-week period.

6. Can the LPA change its screening option?

6.1 Yes, but this should be done within the statutory period unless there is prior agreement of the applicant to extend the period.

6.2 The situation may arise where additional information about the effects of the project not known to the LPA when its screening opinion was given will come to light before a decision is taken on the application. If that information indicates that EIA is required the authority must not ignore it simply because it has already issued an opinion that EIA is not required. If the authority itself is unable to change its opinion, Government advice suggests the LPA should request a screening direction from the Secretary of State before any decision is taken on the application.

6.3 addressed this issue. The Court held that a "negative" screening opinion issued by an LPA did not determine whether an application for planning permission was "EIA Development" and a "positive" one by the LPA was determinative only in the absence of one by the Secretary of State. On the other hand, an opinion by the Secretary of State, either way, is determinative.

7. Scoping

7.1 Applicants for planning permission may request the LPA to provide a "scoping opinion" on the impacts and issues that are likely to be significant. The statutory process requires discussion between the LPA, applicant and statutory bodies and a scoping opinion to be issued within 5 weeks of the request, or a longer period if it may be agreed.

7.2 Government guidance suggests that LPAs should be encouraged to respond favourably to any request from the applicant for a scoping opinion. They may also wish to consider whether they should extend consultations to involve the public and other interested bodies.

8. Once a scoping opinion is issued, can the LPA request further information?

8.1 A scoping opinion agreed by all interested parties at the outset should help to ensure that the relevant issues and potential impacts are identified and reported in the ES. Provided the EIA is properly carried out this should minimise the need to request further information. However, if it believes that further information is necessary an LPA is able to request it.

8.2 The LPA should obtain all the information it needs to assess and evaluate the likely significant environmental effects of the proposal, before it reaches its decision. It cannot adopt a "wait and see" approach or impose a condition requesting further work to identify the likely environmental effects after permission has been granted. It must be sure that all of these have been identified and taken into account before granting planning permission.

8.3 R v Cornwall County Council ex parte Jill Hardy (2001) is a case in which the applicant carried out an EIA and provided an ES. Although it was known that the site conditions were those favoured by a protected species, bats, the applicant did not investigate for their presence. The LPA, advised by English Nature, imposed a condition requiring the applicant to carry out a survey to establish whether bats were present prior to commencing the development. The Court held that this information should have been included in the ES, otherwise the LPA could not comply with the EIA Regulations. The planning permission was quashed.

9. Consultation

Who has to be consulted, and when?

9.1 A LPA should consult with specified statutory consultees prior to issuing any scoping opinion. It must also give statutory consultees, and members of the public, an opportunity to comment on any ES and its associated planning application and it must take any relevant views expressed by them into account in reaching its decisions.

10. Evaluating the ES

10.1 The LPA is responsible for evaluating the ES to ensure it addresses all of the relevant environmental issues and that the information is presented accurately, clearly and systematically. If it believes that key issues are not fully addressed, or not addressed at all, it must request further information. The LPA has to ensure that it has in its possession all relevant environmental information about the likely significant environmental effects of the project, before it makes its decision whether to grant planning permission. It is too late to address the issues after planning permission has been granted.

11. Does this also apply to applications for outline planning permission where some matters may be reserved for later determination?

11.1 The Directive requires EIA to be carried out prior to the grant of "development consent". Development consent is defined as "the decision of the competent authority or authorities which entitled the developer to proceed with the development". In the UK planning system, it is the planning permission that enables the applicant to proceed with the development. In the case of outline applications, an EIA application must be properly assessed for possible environmental effects prior to the grant of outline permission. The planning permission and the conditions attached to it must be designed to prevent the development from taking a form - and having effects - different from what was considered during the EIA.

12. For outline planning applications, how should an EIA be carried out so as to comply with the Regulations?

12.1 The cases of R v Rochdale MBC ex parte Tew (1999) and R v Rochdale MBC ex parte Milne (2000) set out what the Government in the aide memoire believes is the approach that LPAs need to take when considering EIA in the context of an application for outline planning permission if they are to comply with the Regulations.

12.2 Both cases dealt with a legal challenge to a decision of the LPA to grant outline planning permission for a business park. In both cases an ES was provided. In ex parte Tew the Court upheld a challenge to the decision and quashed the planning permission. In ex parte Milne, the Court rejected the challenge and upheld the LPA's decision to grant planning permission.

12.3 In ex parte Tew, the LPA authorised a scheme based on an illustrative masterplan showing how the development might be developed, but with all details left to reserved matters. The ES assessed the likely environmental effects of the scheme by reference to the illustrative masterplan. However, there was no requirement for the scheme to be developed in accordance with the masterplan. The Court held that description of the scheme was not sufficient to enable the main effects of the scheme to be properly assessed.

12.4 In ex parte Milne, the ES was more detailed; a Schedule of Development with details of the buildings and likely environmental effects, and a masterplan was no longer merely illustrative. Conditions were attached to the permission to tie the outline permission for the business park to the documents which comprise the application. The outline permission sought to restrict the development that could take place, so it would have to be within the parameters of the matters assessed in the ES. Reserved matters would be restricted to matters that had previously been assessed in the ES. Any application for approval of reserved matters that went beyond the parameters of the ES would be unlawful, as the possible environmental effects would not have been assessed prior to approval.

12.5 The Judge emphasised that the Directive and Regulations required the permission to be granted in the full knowledge of the likely significant effects on the environment. This did not necessarily mean that developers would have no flexibility in developing a scheme, but such flexibility would have to be properly assessed and taken into account prior to granting outline planning permission.

12.6 He also commented that the ES need not contain information about every single environmental effect. The Directive refers only to those that are likely and significant. To ensure it complied with the Directive the LPA would have to ensure that these were identified and assessed before it could grant planning permission.

Please note that this is only a brief summary of the regulations and recent cases, the picture is continually changing, and the broad principles of advice will always need careful application to a particular project.

For further information please contact Chris Williams at chris.williams@cms-cmck.com or on +44 (0)20 7367 3571 or Alistair Watson at alistair.watson@cms-cmck.com or on +44 (0)20 7367 3890