EIA cases prompt government to review legislation

The Department for Communities and Local Government (DCLG) wrote to chief planning officers last week warning about the implications of two recent judgments affecting the way in which environmental impact assessment (EIA) applications are handled.

The DCLG said it is currently considering amending legislation in light of the High Court judgement in Baker v Bath and North East Somerset Council, Hinton Organics (Wessex) Ltd (“the Baker case”) and the European Court of Justice preliminary ruling Case C-75/08 (“the Mellor case”).

The Baker case impacts the way local planning authorities screen or assess planning applications for changes or extensions to existing or approved development.  The effect of the ruling is that when determining whether EIA is required, planning authorities much look at the effect of the development, as modified, and not just the modification alone.

Mr Justice Collins ruled that the current situation – contained in Schedule 2 of the Town and Country (Environmental Impact Assessment) (England and Wales) Regulations 1999 – was contrary to the EIA Directive.

Planning authorities must satisfy themselves that they have met the directive’s requirements in light of the Baker case, the DCLG said, because the directive has direct effect.

The Mellor case meanwhile raised the issue of the need to make public the reasons for issuing a screening opinion where EIA is not required. “The ECJ’s preliminary ruling has confirmed DCLG’s view that there is no need for a negative screening decision to contain reasons; but there is a duty to provide further information on the reasons for the decision if an interested person subsequently requests them,” the letter said.