Screen test

RCJ portrait 146x219The Court of Appeal has confirmed the correct test for screening decisions in relation to environmental impact assessments, writes Polly Reynolds.

The aim of an Environmental Impact Assessment ("EIA") is to prevent, reduce or offset the significant adverse environmental effects of certain development projects.

A development will be classed as an "EIA development" if it is of a type listed in Schedule 1 to the Town and Country Planning (EIA) (England and Wales) Regulations 1999 ("EIA Regulations"), in which case an EIA will always be required.

If it is a type of development listed in Schedule 2 to the EIA Regulations, the need for an EIA depends on whether the development is likely to have significant effects on the environment, depending on its nature, size and location.



The question of whether an EIA is required if a development falls under Schedule 2 is one for the local planning authority ("a screening opinion") or for the Secretary of State ("a screening direction"). In the case of Schedule 2 development, the LPA or Secretary of State must decide whether the development is likely to have 'significant effects' on the environment.

In order to assist with these kind of decisions, the European Commission published guidance - "Guidance on EIA screening" (2001) - which states that in deciding what is 'significant':
"A useful simple check is to ask whether the effect is one that ought to be considered and to have an influence on the development consent decision."



In the recent case of R (Loader) v SoS for Communities and Local Government [2012] EWCA Civ 869 a proposed development fell within Schedule 2 of the EIA Regulations. The proposed development was the redevelopment of a bowls club to include 41 sheltered apartments for the elderly, landscaping and access and a new outdoor bowls green, indoor rink, club facilities and car parking. The site was not within the Green Belt or an Area of Outstanding Natural Beauty, nor was it adjacent to or likely to affect a Site of Special Scientific Interest and no protected species were affected. However, the site was 0.7 hectares, which exceeded the applicable threshold of 0.5 hectares, and so EIA screening was required.

In 2009, the Secretary of State issued a Screening Direction which stated that the development was not likely to have significant effects on the environment and so did not constitute EIA development, meaning that no EIA was required.

In 2011, the appellant applied for the Screening Direction to be quashed and was unsuccessful in the High Court. The decision was appealed on the ground that the Secretary of State had misinterpreted the meaning of "significant effects on the environment" in Regulation 2 of the EIA Regulations. The appellant argued that a significant environmental effect was one that "has a real prospect of influencing the outcome of the applicant for development consent". He went on to state that "underlying the [EIA] procedure is the purpose of achieving a high level of environmental protection through precautionary and preventative principles".

However, the Court of Appeal ruled that the test to be applied is "whether it is a project likely to have significant effects on the environment". The test is not whether the effect of the development is one that will have an influence on the development consent decision (which is the wording contained in the European Commission's guidance).

This is because:



  1. The purpose of the screening checklist in the European Commission guidance is to help decide whether the effects are likely to be significant - the fact that environmental effects may influence a development consent decision does not necessarily mean that those effects are 'significant'; and


  2. A test which requires an EIA in all cases where the effect of a development would influence the development consent decision goes against the overall purpose of the procedure which envisages that it should only apply in a limited number of cases that fall within Schedule 2 to the EIA Regulations.



Therefore, in this case, the Secretary of State was entitled to conclude that the proposed development would not have significant effects on the environment and the appeal was dismissed.
 


Polly Reynolds is a Senior Associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5276 or by This email address is being protected from spambots. You need JavaScript enabled to view it..