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New regulations coming into force this month in relation to Environmental Impact Assessments are much clearer, writes James Burton.

The new Town and Country Planning (Environmental Impact Assessment) Regulations 2011, which come into force on 24 August 2011, replace the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, as amended, in England.1

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.

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.

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 an ongoing case, R (Wrenn) v Wiltshire Council, 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 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: “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.

James Burton is a barrister at 39 Essex Street.

1 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.