Abstract:
EIA Manual - Riders for 2005 update_v1.pdf (135.88 KB)
Introduction to the 2006 Updates
This Update is the first supplement to Guidelines for Environmental Impact Assessment . It provides an update on legal matters contained within the Guidelines.
Recent Themes and Trends
Since publication of the Guidelines there have been a number of developments in the field of EIA including:
- the bringing into force of the Planning and Compulsory Purchase Act 2004. This is the first major revision to planning legislation in England and Wales in 15 years. Whilst many of its provisions do not have a direct bearing on EIA the Act introduces the phased abolition of Crown Immunity from planning control and overhauls the development plan system, both of which are of relevance to EIA indirectly (as will be seen below)
- the Strategic Environmental Assessment Directive has now been implemented. Whilst the Guidelines, and consequently this Update, concentrate very much on "Project EIA" as opposed to strategic environment assessment there is nonetheless a brief summary provided below of the main requirements from the 2004 implementing regulations
- whilst the decision of the European Court of Justice is still awaited in the case of Barker, and hence we await any further guidance on the extent of requirements to environmentally assess outline planning applications and applications for reserved matters approvals, the ECJ gave judgment in the case of Wells in 2004 which has implications for LPAs and developers alike if EIA is not undertaken in cases where it should be. Again those implications are considered below
As always there has been a wealth of case-law on EIA-related challenges, but if anything the period since publication of the Guidelines has seen a greater degree of pragmatism exercised by the Courts. If the case of Berkeley represented the high water-mark for strict compliance with every requirement of the Regulations and of the Directive then the Courts have more recently demonstrated a weariness with judicial review challenges of planning permissions on EIA grounds, many of which are either launched apparently for their own sake or else to perpetuate a pure commercial or planning objection long since lost on its merits. The following words of wisdom come from an early EIA case in Australia[1] in the 1980s which has since expressly been endorsed by the Privy Council[2]:
"An environmental impact assessment is not a decision-making end in itself - it is a means to a decision-making end. Its purpose is to assist the decision-maker"
This pragmatic statement of the purposes of EIA illustrates where UK jurisprudence on EIA seems to be headed.
[1] Prineas -v- Forestry Commission of New South Wales (1983)
[2] in the Belize Alliance case - as to which see Chapter 13.0 of this Update