Laying down the law - Does ‘never volunteer for anything’ apply to environmental statements?

7th July 2016

Related Topics

Related tags

  • Business & Industry ,
  • Built environment ,
  • Planning ,
  • Management



Sheridan Treger and Paul Grace on submitting environmental statements, even when the law does not require it.

The Environmental Impact Assessment Regulations are intended to provide decision-makers and the public with information about the likely environmental effects of projects when planning applications are determined. And yet, as readers of the environmentalist well know, they continue to provide one of the most fruitful grounds of legal challenge for objectors seeking to frustrate development.

To screen or not to screen

Major infrastructure projects above the thresholds set out in sch 1 of the EIA regulations, such as power stations and ports, always require an environmental statement. For other types of project (in sch 2 of the regulations), such as urban developments, an environmental statement may not be considered necessary.

If sch 2 proposals of a particular type meet specific thresholds and criteria, or are in a ‘sensitive area’, they have to proceed to the screening stage. This is where the local planning authority forms a view on whether an environmental statement is required because the proposals are considered likely to have significant effects on the environment. Factors include the proposals’ nature, size or location. The regulations make it clear that proposals that fall below the thresholds in sch 2, and are not being carried out within one of the defined kinds of sensitive areas, do not even need to be screened and do not require an environmental statement.

On the face of it, this means that where projects do not meet the sch 2 criteria or thresholds for screening, and are outside sensitive areas, there should generally be no reason to start thinking about whether they are likely to have significant effects on the environment by virtue of their nature, size, location or otherwise. The government’s Planning Practice Guidance confirms this.

Directions by the secretary of state

However, it is sometimes forgotten that the secretary of state has discretion to direct that any sch 2 development still needs an environmental statement, even if it is not in a sensitive area or does not meet the thresholds or criteria. It is open to a local planning authority or, indeed, an objector to request such a direction.

The courts confirmed in R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government, in 2013, that the EIA regulations require the secretary of state in such circumstances to effectively apply the same tests as for screening – that is, whether the development is likely to have significant effects on the environment by virtue of their nature, size, location or otherwise, including relevant criteria from sch 3 of the regulations, grouped under the headings ‘characteristics of the development’, ‘location of the development’ and ‘characteristics of the potential impact’.

In other words, the secretary of state will look at the proposals in the round, at the wider location and cumulative impacts, as if the proposals had been taken forward to the screening stage.

What does a direction mean?

Although the secretary of state rarely makes such directions, the possibility that one could be made means that developers should always, at the outset at least, consider whether there might be concerted lobbying for a direction.

If made mid-way through an application, a direction would cause significant delay. Existing reports and assessments would have to be upgraded into a formal environmental statement. Ecologists might even have to wait until the next available window for particular surveys.

Also, consider the court decision in the case of Roskilly v Cornwall Council earlier this year. The judgment’s logic suggests (quite surprisingly) that if a third party submitted a last minute request for a direction and the local planning authority granted planning permission without awaiting the outcome, and the secretary of state then made a direction, permission could be quashed as an environmental statement would need to be considered. Pre-empting all of this with a voluntary environmental statement could save later cost, delay and uncertainty.

Particular circumstances when pre-emption might be an option is where a strict application of the EIA regulations does not require an environmental statement but the nature of the proposed development suggests it should.

A risk-based approach

The EIA regulations are all-or-nothing. Once a developer has opted in, by volunteering an environmental statement, they apply in the same way as if the environmental statement had been been required by a screening opinion or direction. There are disadvantages: there are additional publicity requirements; a slightly longer determination deadline applies for the planning application (16 weeks); and use of permitted development rights becomes limited.

It would never be appropriate to submit unnecessary environmental statements as a matter of course, simply out of an abundance of caution. Even so, taking a risk-based approach, developers with appropriate environmental consultant and legal advice might well consider that it would be cheaper, quicker and more certain in a small number of borderline cases to submit a voluntary environmental statement, particularly where there is proximity to sensitive locations or the proposals are likely to attract controversy.


Subscribe to IEMA's newsletters to receive timely articles, expert opinions, event announcements, and much more, directly in your inbox.

Transform articles

New guidance maps out journey to digital environmental assessment

IEMA’s Impact Assessment Network is delighted to have published A Roadmap to Digital Environmental Assessment.

2nd April 2024

Read more

Lisa Pool on how IEMA is shaping a sustainable future with impact assessment

27th November 2023

Read more

IEMA responded in September to the UK government’s consultation on the details of the operational reforms it is looking to make to the Nationally Significant Infrastructure Projects (NSIP) consenting process as put forward in the NSIP reform action plan (February 2023).

24th November 2023

Read more

Members of IEMA’s Impact Assessment Network Steering Group have published the 17th edition of the Impact Assessment Outlook Journal, which provides a series of thought pieces on the policy and practice of habitats regulations assessment (HRA).

26th September 2023

Read more

In July, we published the long-awaited update and replacement of one of IEMA’s first published impact assessment guidance documents from 1993, Guidelines for the Environmental Assessment of Road Traffic.

1st August 2023

Read more

Are we losing sight of its intended purpose and what does the future hold for EIA? Jo Beech, Tiziana Bartolini and Jessamy Funnell report.

15th June 2023

Read more

Luke Barrows and Alfie Byron-Grange look at the barriers to adoption of digital environmental impacts assessments

1st June 2023

Read more

Susan Evans and Helen North consider how Environmental Statements can be more accessible and understandable

1st June 2023

Read more

Media enquires

Looking for an expert to speak at an event or comment on an item in the news?

Find an expert

IEMA Cookie Notice

Clicking the ‘Accept all’ button means you are accepting analytics and third-party cookies. Our website uses necessary cookies which are required in order to make our website work. In addition to these, we use analytics and third-party cookies to optimise site functionality and give you the best possible experience. To control which cookies are set, click ‘Settings’. To learn more about cookies, how we use them on our website and how to change your cookie settings please view our cookie policy.

Manage cookie settings

Our use of cookies

You can learn more detailed information in our cookie policy.

Some cookies are essential, but non-essential cookies help us to improve the experience on our site by providing insights into how the site is being used. To maintain privacy management, this relies on cookie identifiers. Resetting or deleting your browser cookies will reset these preferences.

Essential cookies

These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website.

Analytics cookies

These cookies allow us to recognise and count the number of visitors to our website and to see how visitors move around our website when they are using it. This helps us to improve the way our website works.

Advertising cookies

These cookies allow us to tailor advertising to you based on your interests. If you do not accept these cookies, you will still see adverts, but these will be more generic.

Save and close