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.