Legal pitfall potential from EIA changes
Raising the thresholds for environmental impact assessment (EIA) screening could result in legal challenges, experts warn.
The government announced in January that housing developments under 5 hectares or 150 homes will no longer have to go through the screening process whereby local planning authorities decide whether the project needs to undergo EIA.
The current threshold is 0.5 hectares, but the communities and local government department (Dclg) believes that smaller projects should not be covered by EIA because they are unlikely to cause the “significant” environmental impact that the assessments are designed to prevent. It believes that EIAs increase costs and workload for local authorities and developers.
Dclg had originally planned to raise the screening threshold solely on the basis of land area, but has broadened it to cover the number of homes in a project. This was after respondents to the consultation, including IEMA, raised concerns that restricting the threshold to land area only would mean the environmental impact of tower blocks would be ignored. )
Nonetheless, many EIA practitioners and planning lawyers warn that the change could result in smaller projects with the potential for significant environmental impact being challenged in the courts. IEMA members reported several recent housing projects under 5 hectares and 150 homes that local authorities said required an EIA.
Josh Fothergill, policy and practice lead at IEMA, said: “There is a lot of precedent where local authorities have said that a particular type of development needs EIA.” He warned that a lawyer acting for an opponent of an application could find examples of such cases and use them to support a legal challenge.
Examples of sub-5 hectare residential planning applications where councils required EIA include 53 homes on a 0.39 hectare site at Marble Arch in London (pictured); 80 homes on a 2.3 hectare site in Bristol; and 58 homes on 2.7 hectare site at Moat Lane in South Northamptonshire.
Richard Buxton, senior partner at law firm Richard Buxton, said: “Potentially what the government has done is unlawful. It’s excluding all kinds of projects which are likely to have significant environmental impacts.”
In June 2021, the UK’s governing Conservative Party lost a by-election in Chesham and Amersham, a seat it had held for 47 years. The principal reasons reported as the cause of this defeat were proposed planning reforms and the promotion of housebuilding on greenfield sites across the south of England.
As we celebrate the 10-year anniversary of the EIA Quality Mark, IEMA can announce that, during the past 12 months, the scheme has undergone a thorough review of practice, including stakeholder consultation with registrants and assessors, in order to improve it.
The delivery of effective outcomes for the environment, communities and development is a team effort, and more so when it comes to consenting projects that undergo Environmental Impact Assessment (EIA).