Environmental Impact Assessment

Update

2011 has seen the publication of new Town and Country Planning Environmental Impact Assessment Regulations in England and Scotland and a considerable amount of litigation. 1 The litigation has had two major themes: the scope of the EIA Directive and the adequacy of reasons in screening decisions.

Legislation

A series of court decisions have exposed transposition errors. In addition the operation of EIA in reserved matters has been poorly understood. The new regulations try to bring some clarity. These regulations are:

(i) Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (in England);

(ii) Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011.

The Town and Country Planning (Environmental Impact Assessment) Regulations 2011

The new EIA Regulations, which come into force on 24th August 2011, replace the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, as amended, in England.2 They are a further attempt to fully implement the EIA Directive (85/337/EEC as amended). They introduce the following significant new features:

(1) a duty to give reasons for negative screening decisions;

(2) clarification regarding the handling of subsequent applications in relation to EIA development;

(3) changes to the screening of modifications or extensions to projects;

(4) confirmation that screening directions for Sch.2 development may be requested from the Secretary of State by any person, and that such direction may include development below the Sch.2 thresholds.

1 The account of the 2011 EIA Regulations borrows from a paper by James Burton of Thirty Nine Essex Street.2 The 1999 Regulations remain in force in Wales. The new regulations allow the Secretary of State to disapply the devolved administrations’ EIA regimes in respect of particular projects for national defence purposes.

1

They also now include sites for the geological storage of CO² and installations for the capture of CO² for the purposes of geological storage.

Duty to give reasons for negative screening decisions

The new duty upon local planning authorities and the Secretary of State to give reasons for negative, as well as positive, screening decisions follows from the decision of the Court of Justice of the European Union in R (Mellor) v Secretary of State for Communities and Local Government (Case C-75/08), [2010] Env LR 2, that reasons for negative screening decisions should be given on request. Pragmatically, the new Regulations require all negative screening decisions to be accompanied by reasons to avoid a belated attempt to put together reasons when a request is subsequently made. This reflects Mr Mellor’s primary case in the European Court.3

The duty is found in Reg. 4(7), and also Reg. 4(5)(a) (the latter in relation to a direction that the EIA Regulations shall not apply in relation to a particular proposed development pursuant to Reg.4(4)(a)(i)).

Decision makers must, of course, take care when preparing their reasons for a negative screening decision as they may be subject to administrative law challenge in the normal way.

Subsequent applications in relation to EIA development

A series of European Court decisions established that EIA had to be possible for multi-stage development consents. The 1999 Regulations were amended in 2008 to require screening of ‘subsequent applications’ which had not been subject to EIA. A “subsequent application” is an application for approval of a matter (in a project falling within Sch. 1 or 2 of the Regulations) where the approval is required by or under a condition to which a planning permission is subject and must be obtained before all or part of the development permitted by the planning permission may be begun (ie a Grampian style condition).

Those amendments still caused problems. The requirement to screen later applications was often overlooked (in R(Wrenn) v Wiltshire Council4 permission to apply for judicial review has been granted because the Council failed to screen a reserved matters application for 285 homes). Perhaps more seriously the 1999 Regulations’ approach to subsequent applications where EIA had been carried out at the planning permission stage was hard to discern. The proposals in the 2010 consultation were even more Delphic.

The new Regulations are much clearer.

Regulation 7 requires screening of planning applications for development which has not been subject to a screening opinion or direction and which is not accompanied by an Environmental Statement under the EIA Regulations.

Where the original planning application was subject to EIA, then Reg. 8 requires the original Environmental Statement to be considered when determining subsequent applications unless a new Environmental Statement is submitted. The regulation provides that where it appears to an LPA that an application before them for determination is a subsequent application in relation to

3 The new Scottish Regulations apply the Mellor decision literally, requiring reasons for negative decisions to be given on request: regulation 5(8).4 [2011] EWHC 2198 (Admin).

2

Sch.1 or Sch.2 development, has not itself been the subject of a screening opinion or screening direction, is not accompanied by an Environmental Statement and the original application was accompanied by an Environmental Statement (or approval is required pursuant to a deemed planning permission under s.10(1) of the Crossrail Act 2008), then:

(1) if the environmental information already before the LPA is adequate for them to assess the environmental effects of the development, they shall take that information into consideration in their decision-making;

(2) if the LPA consider the environmental information already before them inadequate to assess the environmental effects of the development, they shall serve a notice seeking further information in accordance with Reg.22(1).

There is no requirement to reconsult on the original Environmental Statement, but any representations made could refer to that document. There may be an issue as to whether the other environmental information submitted during the course of the original planning application, including consultation responses, has to be considered again.

Regulation 9 requires the screening of subsequent applications where the original application was not subject to EIA, even where the original application was subject to a negative screening decision. If a subsequent application is submitted then the LPA is required to screen it provided the subsequent application has not itself been subject to a screening opinion or screening direction and is not accompanied by an Environmental Statement.

Changes to the screening of modifications or extensions to projects

Readers will recall R(Baker) v Bath and North East Somerset Council [2010] 1 P&CR 43, concerning extensions and alterations to an existing composting facility. The old EIA Regulations required only that the extensions and alterations be considered, rather than the cumulative whole that would be created. Collins J held that this amounted to a failure to implement the EIA Directive.

Schedule 2(13) “changes and extensions” aims to plug this gap. The paragraph requires painful cross-reference to Sch.1. For Sch. 2 development screening is required if the ‘development as changed or extended may have significant adverse effects on the environment’ or the change or extension exceed the thresholds in Schedule 2 or the site is in a sensitive area.

Confirmation that screening directions for Sch.2 development may be requested from the Secretary of State by any person, and that such direction may include development below the Sch.2 thresholds

This was a further issue considered by Collins J in R (Baker) v Bath and North East Somerset. By Reg. 4(8)(b) any person may request the Secretary of State to make a screening direction, and by Reg.4(9) the Secretary of State may direct that particular development of a description mentioned in column 1 of Sch.2 is EIA development albeit the development is neither within a sensitive area nor meets or exceeds a relevant threshold.

However, readers will recall that in Baker (paras.37-38) Collins J explained that he considered Art.10a of the Directive had not been implemented because:

3

“the absence of any system to draw attention to the possibility of reference to the Secretary of State is a flaw in the whole”

It must be wondered whether the new EIA Regulations themselves amount to sufficient publicity to meet Collins J’s criticism.

Finally, as noted, the new regulations transpose the amendments made by Directive 2009/31/EC by including Carbon Capture and Storage facilities in Schedules 1 and 2.

Caselaw

Scope of the EIA Directive

R(SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government and Lancaster City Council concerned proposals to demolish the Mitchells Brewery site in Lancaster. The buildings ranged from the Eighteenth to Twentieth Centuries and at the time proceedings were commenced were neither listed nor in a conservation area. A planning application for a major development, which encompassed the Mitchell’s Brewery site, had just been through a call-in inquiry. As the developer had refused to attend the inquiry and the local planning authority had abandoned its support for the scheme part-way through its own evidence,5 there was an expectation that planning permission was going to be refused. At that point the owner of the brewery gave notice under the Building Act 1984 that it was intending to demolish the buildings. SAVE obtained an interim injunction and the case proceeded to the hearing of the judicial review. Whilst the case proceeded, an Eighteenth Century warehouse on the site was listed, but no EIA regime applied to listed buildings. SAVE argued that the demolition of a building on its own was capable of requiring Environmental Impact Assessment. This first of all required demolition to be a ‘project’ which is defined by the EIA Directive as:6

“ - the execution of construction works or of other installations or schemes,

- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources….”

A project would then have to fall within one of the categories in Annex I or II of the Directive to be capable of requiring EIA. In construing these categories it is trite law that the Directive has a ‘wide scope and a broad purpose’.7

Demolition could be a project within Annexes I or II of the EIA Directive or a change to such a project even if no construction works were proposed. An example was the demolition of stone walls for the restructuring of rural landholdings in C-66/06 Commission v Ireland. Consequently the demolition of a former brewery was said to be an urban development project or a modification to an urban development project or a brewery. Since demolition was capable of having a significant effect on the environment, the very wide interpretation of the Directive which was required by European law meant that demolition was subject to EIA. The consequence was said to be that the Demolition Direction was unlawful in excluding projects from a need for EIA,

5 The Council’s conservation officer had given evidence in re-examination that part of the scheme was unacceptable.6 Article 1(2).7 Case C-72/95 Kraaijeveld [1996] ECR I-5403, paragraph 31

4

because no planning permission was required and even where heritage consents applied they did not include EIA.

The High Court rejected SAVE’s submissions, holding that urban development projects, for example, required construction in the sense of putting up new buildings or the extensive modification or refurbishment of existing buildings and that the demolition of a building was neither a project nor a change to a project.8

At the same time, the European Commission was bringing proceedings against Ireland contending that its exclusion of certain demolition from EIA was a breach of the Directive: Commission v Ireland (C-50/09). The Court of Justice of the European Union gave judgment on 3rd March 2011. The CJEU held:

“97 As regards the question whether demolition works come within the scope of Directive 85/337, … it is appropriate to note, at the outset, that the definition of the word ‘project’ in Article 1(2) of that directive cannot lead to the conclusion that demolition works could not satisfy the criteria of that definition. Such works can, indeed, be described as ‘other interventions in the natural surroundings and landscape’.

98 That interpretation is supported by the fact that, if demolition works were excluded from the scope of that directive, the references to ‘the cultural heritage’ in Article 3 thereof, to ‘landscapes of historical, cultural or archaeological significance’ in point 2(h) of Annex III to that directive and to ‘the architectural and archaeological heritage’ in point 3 of Annex IV thereto would have no purpose. …

99. Annexes I and II … make no express reference to demolition works except, irrelevantly for the purposes of the present action, the dismantling of nuclear power stations and other nuclear reactors ...

100 However, it must be borne in mind that those annexes refer rather to sectoral categories of projects, without describing the precise nature of the works provided for. As an illustration it may be noted, as did the Commission, that ‘urban development projects’ referred to in point 10(b) of Annex II often involve the demolition of existing structures.”

The following week the Court of Appeal heard argument in SAVE Lancaster. The Secretary of State did not alter his position and contended that (a) the CJEU was wrong and (b) the judgment only applied to interventions in the natural surroundings and landscape and had no application to the demolition of a brewery in an urban area.9 The Court of Appeal disagreed. Sullivan LJ held:

“17. … If it is accepted that works are capable of having significant effects on the environment, the definition of “project” in Article 1.2 should, if possible, be construed so as to include, rather than exclude, such works. Applying this approach to the first limb of the definition in Article 1.2, it seems to me that the execution of demolition works falls

8 [2010] EWHC 979 (Admin).9 [2011] EWCA Civ 334 at para 13. Sullivan LJ continued ‘Having previously resisted [SAVE’s] submission that there should be a reference to the CJEU on the basis that this Court could decide the principal point in issue in his favour with “complete confidence”, the [Secretary of State] now contends that if his submissions are not accepted there should be a reference to the CJEU, because it is at liberty to, and should, reconsider its previous decision in Ireland’.

5

naturally within “the execution of ….other….schemes….”. Demolition works are the antithesis of construction works, but the first limb of the definition is not confined to “construction works”, it expressly includes “other schemes”, ie schemes which are not construction works.”

He continued:

“24 … It is a curious, and thoroughly unsatisfactory, feature of the Direction that those demolitions which are most likely to have an effect on the cultural heritage – the demolition of listed buildings, ancient monuments and buildings in a conservation area – are effectively excluded from the ambit of the Directive.

25. … For the purposes of the Directive “landscape” is something other than “natural surroundings.” In the context of a Directive the purpose of which is to ensure that significant environmental effects are properly assessed before projects proceed, I do not see why “landscape” in Article 1.2 should be confined to rural landscapes.

26. … The CJEU explained in paragraph 100 of its judgment that the Annexes refer to sectoral categories of projects, and do not describe the precise nature of the works which may comprise such a project. If demolition is capable of being a “scheme” for the purposes of Article 1.2, it is also capable of being an “urban development project” within paragraph 10(b) of Annex II, even though the project comprises only demolition and restoration of the site in accordance with a notice under section 81(1) of the 1984 Act.”

The Court of Appeal therefore declared:

i) “Demolition of buildings is capable of constituting a project falling within Annex II of the Directive; and

ii) Paragraph 2(1)(a)-(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 (“the Direction”) is unlawful and should not be given effect.”

The effect is to delete the exemption of buildings from the definition of development except for buildings with an externally measured cubic content of 50 cubic metres or less or the whole or any part of any gate, fence, wall or other means of enclosure.10 The solution was neat. With those exceptions, demolition required planning permission but an application could be made under permitted development rights (unless they had been withdrawn by an Article 4 direction). Environmental Impact Assessment screening could take place on the permitted development application and if EIA was required a planning application would have to be made, accompanied by an Environmental Statement.

Smout

Smout v Welsh Ministers concerns an application to quash orders modifying planning permissions for landfilling at the Hafod Quarry, Ruabon in North Wales. Planning permission had been granted, following EIA, for a large landfill site in 1995. A section 73 permission was granted in

10 These provisions had not been challenged by SAVE because of their usual small scale, however the demolition of significant lengths of wall might require EIA: Commission v Ireland C-66/06 and the EIA Regulations on agriculture.

6

1998. Part of the site was then designated as a Site of Special Scientific Interest (SSSI) and then a Special Area of Conservation because of the presence of Great Crested Newts. It was common ground that a species licence would not be granted to allow landfilling in the SSSI/SAC. The then developer attempted to exclude the SSSI/SAC and comprehensively change the infill, phasing and restoration proposals over the remainder of the site by an approval of fresh details under the 1995 permission to avoid the problems caused by the newts. This was quashed by the High Court in 2005 on the basis that the phasing and restoration plans were fixed.

The local planning authority, Wrexham County Borough Council, then made orders modifying the two landfill planning permissions and a minerals planning permission on the site. The effect of the 2007 orders was to exclude the SAC/SSSI sites from the permissions and to adopt the phasing and restoration proposals which had been quashed in 2005. The orders were challenged on the basis, inter alia, of the failure to carry out EIA of the modification orders. The Council and the Welsh Ministers had considered whether EIA was required and decided that there were not likely to be significant effects on the environment. The High Court rejected the challenge but did hold that the EIA Regulations did not properly transpose the Directive as they did not allow for EIA of modification orders.11 Permission to appeal was granted by Lord Justice Stanley Burnton and the substantive appeal is to be heard in Cardiff in November 2011. An issue in that appeal is whether the EIA screening of the modification orders had to consider the likely environmental effects of the development as proposed to be modified. The Welsh Ministers have filed a respondent’s notice contending that the 1999 EIA Regulations can be interpreted to provide for screening of modification orders (although they do not appear to contend that an EIA of a modification order can be done within the Regulations).

Wye Valley

Whilst the categories in the Annexes to the Directive are wide, and must be construed widely, projects do sometimes fall outside them. R(Wye Valley Action Association Ltd) v Herefordshire Council12 concerned the erection of polytunnels for cultivating soft fruit on a farm. The High Court had rejected the Council’s contention that the project fell outside ‘the use of uncultivated land or semi-natural areas for intensive agricultural purposes’ (Schedule 2, para 1(a) of the EIA Regulations). The Court of Appeal applied the approach in R (Goodman) v London Borough of Lewisham13 that the authority has to correctly construe the legal meaning of the categories in the Schedule but if it did so, its application to the facts was judged against a rationality standard if there were a number of possible conclusions. Ian Dove QC, sitting as a Deputy High Court Judge, had said:

“Semi-natural land is land where there has been some interference with that landscape, but the natural qualities which preceded or continued alongside man's activities are still clearly and obviously evident in the natural environmental capital of the area. ... the question of semi-natural area needs to be assessed not simply by reference to the appeal site but to the site in its context.  A site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB,

11 [2010] EWHC 3307 (Admin), [2011] Env LR 17.12 [2011] EWCA Civ 20.13 [2003] EWCA Civ 140.

7

overlooked by a Scheduled ancient monument, to my mind clearly comes within the definition of "semi-natural area" as a matter of law.”

The Court of Appeal disagreed, saying that the meaning of ‘semi-natural area’ was inherently imprecise. The Council had not misunderstood the meaning of semi-natural and their conclusion that the site was not semi-natural (saying it was ‘already cultivated (mixture of arable and turf production)’) was not irrational.

SWVAG

R(SWVAG) v Bath & North East Somerset Council concerns agricultural activities at a farm in the Woolley Valley which was previously owned by Jonathan Dimbleby and Bel Mooney. The Council considered enforcement action against various matters but concluded that the erection of chicken sheds, 20 metres long by 6 metres wide by 3.5 metres high, 10 in number, with a chicken holding capacity of 1000 each or a duck holding capacity of approximately 500 each, with a total square meterage from the 10 of 1200 square metres and each within a 1 to 2 acre paddock, is not development and because it is not development does not require an EIA. The sheds had to be assembled on site and where then intended to be moved periodically within their field so the bird manure could be moved offsite. The claimant contended that the sheds themselves or the sheds and their paddocks are intensive livestock installations within the EIA Directive and so the meaning of development in the Town and Country Planning Act 1990 should be construed to include them.

Mr Justice Ouseley granted permission to apply for judicial review identifying the issue as:14

“what is the scope of an installation? It is indicated in Commission guidance for what that is worth and I have reservations about the role of an executive document in construing regulations that installations are capable of including outdoor facilities. I am by no means clear whether an installation for Directive purposes is confined to floor space and may not be broader and may not be confined to buildings. The nature of the activities here seem arguably to give rise to precisely the concern that structures permanently on site within a particular area, although moved and mobile within that area, may properly be described as an installation though falling short of being a building. This could give rise to an issue as to how buildings should be interpreted for these purposes or whether the domestic regulations are a bit narrow.”

The Secretary of State has filed detailed grounds in the proceedings contending that the sheds are capable of being development within section 55 of the Town and Country Planning Act 1990 on a domestic law approach and the definition of development must in any event be read in light of the aims and purposes of the EIA Directive. Following the European Commission’s guidance a mobile installation may be a project within the Directive.

Dale Farm – McCarthy

The Dale Farm litigation concerned the proposal by Basildon Borough Council to carry out direct action under section 178 of the Town and Country Planning Act 1990 to carry out steps under

14 [2011] EWHC 2606 (Admin) at para 6.

8

planning enforcement notices. These steps including the removal of caravans and the demolition of hardstanding, fences, walls and buildings (although the Council would have to re-erect the fences and walls). In one of the judicial reviews of the proposed action (R(McCarthy) v Basildon Borough Council) it was argued that this was a project within Article 1.2 of the EIA Directive as an ‘other scheme’ and an ‘intervention in … the landscape’. 15

Since the Council were a developer as the public authority which initiated the project. The decision to take direct action was said to be a development consent as it was the decision which entitles the Council to proceed with the works (possibly as part of a multi-stage development consent with the enforcement notices). The project fell within Annex II of the EIA Directive as an urban development project or a permanent caravan site or as a change to such a project. Ms McCarthy contended that the Directive does not distinguish between projects which demolish lawful development (as in the SAVE Britain’s Heritage case) and projects demolishing unlawful development. In either case the act of demolition might have significant environmental effects. If remedial works might have significant environmental effects then they should be assessed. An example would be where there has been the unlawful deposit of a large amount of material where an EIA might need to consider the effects of removing that material against alternatives of leaving some or all of the material or requiring regarding or planting of the site. The purpose of the Directive was to be achieved by enabling Environmental Impact Assessment to be carried out in such circumstances. Such an EIA would be carried out by the local planning authority.

The submission was rejected by Mr Justice Ouseley in the High Court and Lord Justice Sullivan in the Court of Appeal as contrary to the purpose of the Directive as it erected a hurdle to enforcing against unlawful development.

Reasons

In R(Mellor) v Secretary of State for Communities and Local Government (Case C-75/08) [2010] Env LR 2 the European Court of Justice confirmed that a decision that a development did not require an EIA must contain or be accompanied by sufficient information to make it possible to check that it was based on adequate screening carried out in accordance with the directive or that such information should be provided on request. The court held that it is necessary for third parties, as well as the administrative authorities concerned, to be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary and for them to have sufficient information to enable them to challenge the decision by legal proceedings, if that is thought appropriate.

The case prompted the requirement in the new EIA Regulations that negative screening decisions be accompanied by reasons. Since there was a duty to give reasons, at least on request, the adequacy of reasons has become a major issue in EIA litigation.

In Mellor the European Court held:

15 See R(SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334; [2011] JPL 1016

9

“59 . . . effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request . . . .

60 That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made. …

63 While as is clear from the reply to the first question, the reasons need not necessarily be contained in the determination not to carry out an EIA itself, the competent administrative authority can, under the applicable national legislation or of its own motion, indicate in the determination the reasons on which it is based.

64 In that case, the determination must be such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention.”

In the light of the ECJ judgment, the Court of Appeal in Mellor suggested that very short text used by the Secretary of State in that case16 was not adequate: [2009] EWCA Civ 1201 at paragraph 12 per Waller LJ:

“It would seem to me reasonably clear that if the Secretary of State were arguing before the court that the reasons given in that decision letter alone were sufficient, the court would be inclined to say, to the contrary, and that there would need to be other information and other reasoning supplied.”

In R(Bateman) v South Cambridgeshire District Council17 a developer applied for a screening opinion, submitting a letter and appendices which ‘addressed in detail the criteria set out in Schedule 3’ (para 5). The Council produced five paragraphs of reasons in support of a negative screening opinion (para 6). The decision was quashed by the Court of Appeal by a majority. Moore-Bick LJ said (para 21):

16 The Secretary of State’s screening direction had said: ‘... in the opinion of the Secretary of State and having taken into account the selection criteria in Schedule 3 to the 1999 Regulations and the representations made by Mr C. Mellor on behalf of Residents for the Protection of Nidderdale, the proposal would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location.Accordingly, in exercise of the powers conferred on him by regulation 6(4) of the 1999 Regulations the Secretary of State hereby directs that the proposed development described in your request and the documents submitted with it, is not “EIA development” within the meaning of the 1999 Regulations. Any permitted development rights which your proposal may enjoy under the Town and Country Planning (General Permitted Development) Order 1995 are therefore unaffected.’ (ECJ judgment, para 36)17 [2011] EWCA Civ 157.

10

“21 ... it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request.

22 ... It is true that the planning officer’s reasons must be read in the context of the letter to which they were a response, but nowhere in them does one find set out a clear statement of her reasons for concluding either that there will be no discernible effects in relation to traffic movements, landscape or noise, or that, if there may be, they will not be sufficiently serious to be regarded as significant.

27. Nothing has been put before us to suggest that the planning officer’s decision in this case was not carefully and conscientiously considered, nor do I think it can be said that it was not in fact based on information that was both sufficient and accurate. However, I have, somewhat reluctantly, come to the conclusion that the reasons given for her decision do not make it sufficiently clear why she reached the conclusion that an EIA was not required in this case. That is not to suggest that she may not have had perfectly good reasons for reaching that conclusion, just that it is not clear what they were. Although the matters referred to in paragraph 3, which refers to the risks of flooding, public rights of way, tree preservation orders, ancient monuments and environmentally sensitive areas, are of importance in themselves, they were not aspects of the environment that were potentially at risk and so did not require detailed consideration. Paragraph 5 contains the whole of her reasoning in relation to the effects that were of potential significance.

28. It is perhaps unfortunate that the planning officer chose to express her decision in the language used in paragraph 33 of Circular 02/99, because the three criteria to which it refers are couched in terms so broad that they offer only general guidance in relation to the kind of projects that are likely to require an EIA. However, the same criticism could have been made had she expressed her reasons in terms of what is described in paragraph 34 as the “basic test”, namely, that she has not made it clear why she did not consider the test to be satisfied. One can, I think, infer that the planning officer had considered the three matters to which she referred in paragraph 4 and that she may have accepted Savills’ arguments in relation to them. She may have thought that conditions could be imposed on any grant of planning permission to ensure that the effects would not be significant. The difficulty is that one does not know and cannot safely infer what her reasons were. In my judgment, therefore, the opinion does not comply with the requirements laid down in Mellor.”

In R (Friends of Basildon Golf Course) v Basildon District Council18 Pill LJ, with whom Carnwath and Rimer LJJ agreed, emphasised in para 62 of his judgment that the decision taken on a screening opinion must be carefully and conscientiously considered and must be based on

18 [2010] EWCA Civ 1432

11

information which is both sufficient and accurate. The opinion need not be elaborate, but must demonstrate that the issues have been understood and considered.

The adequacy of attempts to construct the reasons from the request for a screening opinion and consultation responses was considered in R(Berky) v Newport City Council.19 The High Court held that a screening opinion which did not itself contain reasons but referred to the request and consultation responses was to be taken as adopting the reasons in the request but not the erroneous reason in the Council’s highways department’s consultation response on EIA screening. The highways error was to say that EIA was not required because a Transport Assessment would be submitted, contrary to R(Lebus) v South Cambridgeshire District Council20

where Sullivan J criticised ‘the impermissible premise that it is unnecessary to obtain a formal environmental statement if the information will be received in sufficient detail as part and parcel of the material one might expect with an application’ The Berky decision is the subject of an application for permission to appeal.

Richard Harwood

Thirty Nine Essex Street

October 2011

Richard Harwood has appeared in Berky, Dale Farm (McCarthy), Goodman, Lebus, Mellor, the SAVE Britain’s Heritage cases, Smout, SWVAG and Wrenn. He led Ellen Wiles in Dale Farm, Andrew Deakin in the SAVE Lancaster litigation and is leading Caroline Allen in Smout. Matthew Horton QC acted for the interested party in SWVAG.

Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered office at 39 Essex Street, London WC2R 3AT Thirty Nine Essex Street's members provide legal and advocacy services as independent, self-employed barristers and no entity connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street, London WC2R 3AT

19 [2011] EWHC 2100 (Admin).20 [2003] JPL 466 at para 39

12