Making the link

The High Court has given useful guidance on the construction of the EIA Regulations for functionally interlinked development under separate planning applications.

In December 2010 the Interested Party applied to the Council for planning permission for an energy from waste facility (“the First Application”). The Council conducted a Screening Opinion under the (then in force) Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”) which concluded that the application was a Schedule 2 application but that it was not likely to have significant effects on the environment, such that Environmental Impact Assessment was not required.

Following the Screening Opinion, the Interested Party amended the First Application by the removal of a combined heat and power plant (“a CHP plant”). It also made a further application for planning permission (“the Second Application”) to site the CHP plant in a new location approximately 1.1km from the First Application site and for a 20cm diameter underground pipe linking the two sites. The Council granted planning permission for both the amended First Application and the Second Application without issuing a further Screening Opinion.

The Claimant, a local resident, sought to challenge both planning permissions. At a rolled up hearing on 26 April 2012 His Honour Judge Waksman QC, sitting as a judge of the High Court, dismissed her claim.

The principal ground of challenge was that the Council had breached Regulation 7 of the EIA Regulations by not undertaking a further Screening Opinion.

The judge began by considering the Second Application. He rejected the Claimant’s contention that the area of the works for the pipe should be measured by the area of the 10m wide corridor within which it could be laid. As a result of that finding, he held that the Second Application was too small to constitute a Schedule 2 application. As a result of that, the Second Application did not fall within Regulation 7(1) and no Screening Opinion was required.

In so holding, the judge rejected the Claimant’s contention that, in assessing the Second Application, Regulation 7 required the Council to assess the cumulative impact of both applications as being contrary to the clear meaning of that Regulation. The judge also rejected the Claimant’s contention that this approach would lead to “salami-slicing”. The Claimant was not alleging salami-slicing in this case. In addition, the judge accepted the Council’s and Interested Party’s contention that the Secretary of State’s power of direction under Regulation 4(8) was sufficient to prevent developers from salami-slicing applications so as to avoid the EIA regime.

As for the First Application, which was a Schedule 2 application, the judge held that “development in question” under Regulation 7(1)(b) was the development proposed under the First Application and not, as the Claimant contended, that proposed under both applications taken together. The First Application had been subject to a Screening Opinion in its original form and the judge considered that the changes to it were not sufficiently material to mean that the “development in question” had changed.

The judge therefore considered that the Council had not erred in not carrying out a further Screening Opinion. He also accepted the evidence of the Council’s Planning Officer that full consideration of screening issues had in fact been undertaken, despite not being required, on the amended First Application and Second Application, but merely not reduced to writing at the time. Finally, the judge concluded that it was not arguable that any further Screening Opinion could have concluded that Environmental Impact Assessment was required, such that, even if there had been a failing by the Council, it could be disregarded.

For those reasons, the judge rejected the first ground.

The Claimant also argued: that the Council gave no consideration to the environmental effects of a by-product of the process of anaerobic digestion; and that there was no adequate noise assessment of the amended First Application, meaning that the permission granted was unlawful because a material consideration had not been addressed. The judge also rejected both of these grounds.

John Hobson QC and Ned Helme represented Breckland District Council (the Defendant) and Alex Goodman represented Greenshoots Energy Ltd (the Interested Party). All three are barristers at 4-5 Gray's Inn Square.