Environmental Impact Assessment - an update - Mrs HARRIET TOWNSEND 2-3 GRAY’S INN SQUARE

“On planning we have already legislated to make major changes, but in frankness, I believe we have much more to do.” Gordon Brown to the CBI 5 th June 2006

Legislation 2006 included… 10 th August 2006 S42(1) of the PCPA 2004 brought into force – new s62 of the TCPA 1990 SI 2006/1062 amended the GDPO 1995

Legislation 2006 included … Effect The definition of outline appl has not changed The categories of those matters which may be reserved is defined Art 3(1) GDPO Lpa have greater powers to require additional information as part of and in support of an application for pp [s62(3)] Unless an appl falls within one of categories specified a design and access statement is required The GDPO [Art 3(3)-(5)] set out min info required for every OL appl

Legislation 2006 intended… Intended, at least in part, to provide statutory backing to the existing case law in the Rochdale line of cases [“bare” outlines are unlikely to provide sufficient information to enable EIA to be carried out]. The focus is on making OL permissions more robust – little attention in legislation or policy given to procedures for assessment of reserved matters applications.

Barker While the Government was bringing these measures into force, the ECJ was looking closely at whether the UK’s failure to provide for EIA at reserved matters stage is a failure fully to implement the EIA Directive [85/337/EEC]. It is: Commission v UK and Barker v LB Bromley [judgment in both given on ].

Barker - facts Diane Barker lived nr Crystal Palace where major recreational/leisure devt was proposed in an outline appl in 1997 [under 1988 EIA Regs]. No EIA at that stage. A limited challenge was unsuccessful. At reserved matters stage the LB Bromley was advised they had no power to require EIA. They approved the rm appl in These permissions eventually lapsed during the litigation which followed.

The EIA Directive Full title: Assessment of the Effects of Certain Public and Private Projects on the Environment, 1985 amended 1997 It has direct effect and can therefore be relied upon by individuals in domestic proceedings against the state or emanations of the state (eg lpas) UK: 1988 then 1999 Regs

The EIA Directive “whereas [certain approved programmes] affirm the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes;” [preamble] "development consent“ means: the decision of the competent authority or authorities which entitles the developer to proceed with the project. [Art 1]

The EIA Directive “Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4.” [Art 2(1)] Annex I projects shall be subjected to assessment. Annex II projects shall be subjected to assessment “where Member States consider that their characteristics so require”. [Art 4] Schedules 1 and 2 to the 1999 Regs are derived from Annex I and II of the Directive.

Barker - B claimed both the outline consent and the approval of reserved matters were unlawful. The essence of B’s argument was that the Council could and should have considered whether EIA was required. They should have “screened” the development.

Barker – The project was an urban devt project within class 10(b) of Annex II to the Directive and Schedule 2 to the Regs. In such a case screening is required at planning application stage. Why not at reserved matters stage? No provision is made for this in the UK Regulations. The UK argued that the outline planning permission was the “development consent” for the purposes of the Directive and that the reserved matters approval merely implemented that consent.

Barker – ECJ ruled 1.Classification of a decision as a “development consent” [within Art 1(2)] must be carried out pursuant to national law in a manner consistent with Community law. 2. Arts 2(1) and 4(2) of the Directive are to be interpreted as requiring EIA to be carried out if, in the case of grant of consent comprising more than one stage, it becomes apparent, in the course of the second stage, that the project is likely to have significant effects on the environment by virtue inter alia of its nature, size or location.

Surprised? The Barker ruling from the ECJ is far reaching in its effect but surely not surprising Wells v STLGR [2004] ECR I-723 old mining permissions Noble v Thanet DC [2006] Env LR 8 lpa lawfully carried out screening exercise at reserved matters stage Commission v UK [2006] QB 764 infraction proceedings brought on the same point as Barker 1 Dec 2003

Barker - House of Lords Lord Hope Declaration: (1)By precluding any consideration for the need for an EIA at the stage when, following the grant of outline planning permission, consideration is being given to an application for approval of reserved maters the 1988 Regulations failed fully and properly to implement the Directive, and (2)the Council misdirected itself in law when it decided that it had no power to require an EIA to be carried out in accordance with the requirements of the Directive at that stage. [see at 30 of 2006 UKHL 52]

Barker – Other guidance from the unanimous HL The outline permission included a standard condition requiring details to be submitted to and approved by the lpa before development is commenced. “Any grant of planning permission which contains a condition in these terms must be regarded as a multi-stage development consent for the purposes of the Directive. “It does not follow however where planning consent for a development takes this form, that consideration must be given to the need for an EIA at each stage in the multi-consent process....The need for an EIA at the reserved maters stage will depend on the extent to which the environmental effects have been identified at the earlier stage.” Paras 21-22

Barker - Other guidance from the unanimous HL For schedule 2 devt the authority must decide at the outset whether an EIA is needed ie at the outline stage If sufficient info is given at the outset it ought to be possible to determine whether the EIA will take account of all the potential environmental effects that are likely to follow as consideration of the project proceeds to the next stage. Conditions designed to ensure that the project remains strictly within the scope of that assessment will minimise the risk that effects will not be identifiable until reserved matters. It is only if those effects are not identifiable until the time of the reserved matters decision that the assessment should be carried out in the course of that procedure

Barker - R v Rochdale MBC ex pTew (the first of the two Rochdale decisions) concerning the adequacy of an outline consent: Sullivan J’s observation that “if significant adverse impacts on the environment are identified at the reserved matters stage and it is then realised that mitigation measures will be inadequate, the lpa is powerless to prevent the development from proceeding must now be regarded as unsound. If it is likely that there will be significant effects on the environment which have not previously been identified, an EIA must be carried out at the reserved matters stage before consent is given for the development.” [para 29 HL]

DCLG Letter Colin Byrne of DCLG to Chief Planning Officers gives interim guidance. Interim as await outcome of Barker in the House of Lords. As at DCLG hopes to produce new Regs by mid- year with Circular Guidance. But another Barker is resource-hungry.

DCLG interim guidance It is specific to applications for approval of reserved matters. As the EIA Directive has direct effect lpas should satisfy themselves that they have met the requirements of the EIA Directive when considering approval of reserved matters even thought this is not currently required by UK legislation This may be required where likely significant effects are identified at the rm stage which either a) were not identifiable or identified at the OL stage or b) were identifiable but which now require a fresh assessment probably because of a significant change of circumstances.

DCLG interim guidance At reserved matters stage:- Where EIA was undertaken – provided sufficient information given at the OPP stage, further EIA is unlikely to be necessary. Where EIA not considered necessary - “provided the screening process at the OPP stage was undertaken properly and in accordance with the guidance in 02/99” EIA unlikely to be necessary Where failed to consider the need for EIA at OPP stage “the need to revisit EIA at the approval of reserved matters stage is most likely to be required.”

DCLG interim guidance Whenever a lpa receives an appl for approval of reserved matters it should screen the development again “to determine whether all of the likely environmental significant effects have been considered … Where the detail at reserved matters has revealed new or additional likely significant effects on the environment not identified and/or assessed at the OPP stage, the approval of reserved matters without obtaining the necessary environmental information is likely to be in breach of the Directive and thus unlawful.” The EIA required could take the form of a supplemental EIA or addendum to an existing EIA but it must be “comprehensive”. If the applicant fails to carry out EIA the lpa must either refuse the approval of reserved matters or defer determination until an EIA is provided.

What does it all mean? The grant of planning permission in the UK is or may be a multi- stage development consent. LPAs should screen applications rigorously at the first stage of this process but will also need to screen at later stages. If, therefore, they decide that development is not EIA development they will need to know why that decision was made in order reliably to assess whether the later stage of consent raises new and previously unassessed likely significant impacts. LPAs should use their powers to obtain sufficient information at the first stage of the consent process to ensure EIA is comprehensive and that conditions hold the consent within the scope of that assessed.

What should lpas do? Screening procedures need to be robust. Adopt a stage by stage process as follows 1.Must screen if the project is Schedule 1 or Schedule 2 development. This is a question of law – Goodman v Lewisham [2003] Env LR If the project is within Schedule 1 it is EIA development. If it is Schedule 2 devt assess whether it is “likely to have significant effects on the environment by virtue of factors such as its nature, size or location” taking into account such of the criteria in Schedule 3 as are relevant to the development. This is a question of judgment.

What should lpas do? Ensure experienced officer with delegated power to adopt a screening opinion carries out the screening process. Always record reasons for the screening decision - whether or not required by Regs. Note on the file which category of Schedule 2 the development falls within. If EIA is necessary at reserved matters but is not followed by the developer, it may be necessary to refuse permission.

What should lpas do Consider carefully how to use their powers, in particular those most recently granted, to secure sufficient information at the outline stage, and to control the consent by condition so as to minimise the number of occasions on which it will be necessary to re-open the EIA process at subsequent stages of the development consent.

Unanswered questions #1 Faced with a lpa’s requirement for EIA at the reserved matters stage, can developers request a screening direction of the SoS? Probably (in my opinion). However, interim guidance from DCLG does not deal with or recognise this. An alternative is for the developer to appeal the refusal of planning permission and hope for a negative screening decision from the SoS on appeal.

Unanswered questions #2 Can the details submitted at reserved matters re-open the principle of development? The EIA required, if any, at a stage subsequent to the outline or initial stage, may (but is unlikely to) reopen the principle of development. Much greater use is likely to be made of scoping opinions to guide the content of EIA required at a second or subsequent stage.

Unanswered questions #3 Can the need for an EIA arising at the reserved matters stage reopen the question whether an EIA should have been obtained at the outline stage? In principle, yes.

Unanswered questions #4 What about other conditions reserving details for subsequent approval? Any condition which reserves details for subsequent approval and which withholds the right to develop pending approval represents a stage in the development consent which could in theory give rise to the need for EIA of the implications of those works. [eg where a scheme for drainage works is required to be submitted for approval as in model condition40]

Unanswered questions #5 Where a project with outline consent is to be developed in phases and a reserved matters application is made in relation to part, is “the development consent” the part or the whole? Take care with this but probably the part, plus any parts already permitted – there is no need to speculate about the future.

- Mrs HARRIET TOWNSEND -