Politics and poor judgement in screening opinions

14th November 2013

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Chris Rochfort, from MWH, discusses a planning authority's screening opinion where the applicant felt that the legislation had been incorrectly interpreted, and that local pressures had influenced the decision

Water and sewerage pipeline projects are sometimes subject to environmental impact assessment (EIA). Circular 02/99 states that pipelines greater1 hectare in size are Schedule 2 developments, with projects more than 5km in length and those affecting “sensitive sites” as defined by the EIA Regulations, more likely to trigger an EIA.

MWH, on behalf of a water utility, undertook an EIA screening for a project aimed at alleviating sewer flooding in the basements of 300 properties. The solution involved significant works in two local parks; the only suitably large and open areas in the high density location. The scheme included underground stormwater storage shafts, small buildings and hard/soft landscaping in each park. In addition, a new 400m, 2.5m diameter tunnel sewer and 1.1km of sewer upgrades were required.

As statutory undertakers, water companies benefit from significant permitted development rights under Part 16, Class A (a) of the Town and Country Planning (General Permitted Development) Order 1995. However, permitted development rights do not apply if the development is screened as EIA development, instead requiring a planning application.

Screening for EIA

The scheme is a Schedule 2 development because the project is larger than 1ha. The case against the need for EIA, made the following arguments :

  • The reasons to require an EIA on a Schedule 2 development, as set out in paragraph 33 of Circular 02/99, did not apply.
  • The scheme’s temporary nature and less intrusive construction methods lessened the significance of any residual environmental effects.
  • Circular 02/99, section A28 states: “For underground pipelines... EIA is more likely to be required for any pipeline over 5km long. EIA is unlikely to be required for pipelines laid underneath a road, or for those installed entirely by means of tunnelling.” In this case, the new sewers total approximately 1.5km, with the majority laid underneath road, or by means of tunnelling.
  • One of the parks, a site of importance for nature conservation (SINC), related to a small manmade wildflower meadow, which did not meet the criteria for sensitive areas.
  • Paragraph 65 of Circular 02/99 states: “Local planning authorities are reminded… to determine the significance or otherwise of the likely environmental effects of the proposed development, rather than to judge its planning merits. They should, therefore, make every effort to minimise disruption and delay, particularly … for essential improvements to public water and sewage treatment systems...”

Despite these compelling arguments, the local planning authority concluded an EIA was required, for the following reasons:

  1. “Taking into account the extent, nature, complexity and duration of the proposed works, and the location in a densely populated urban environment, the development scheme is likely to have significant effects on the environment, particularly in terms of pollution and nuisance (including traffic) during the construction phases of the development.”
  2. “Taking into account the scale and extent of the proposed works and their location within parks (including the SINC) and the underground tunnelling proposed, the scheme is likely to generate significant environmental impacts in terms of ecosystems and changes to water levels.”

While the basis for the first reason is understandable, the SINC cannot be used as a basis for an EIA being required. Additionally, the works are all in London Clay, an aquiclude (a barrier to groundwater flow), and more than 1km from the nearest watercourse, meaning that no impact on water was expected.

Interpretation of law

The project team felt that the decision had to be challenged because it was felt to be an incorrect interpretation of the environmental risks, the EIA Regulations and Circular 02/99 and it risked setting a precedent for similar schemes. Carrying out an EIA would also delay the programme and increase costs.

The local planning authority confirmed that consultation with residents groups and councillors had uncovered significant opposition to the project, mainly by residents not benefitting from the project. Residents had also raised the issue of EIA with the councillors, while earlier informal comments from the case officer had suggested that EIA was not an area of concern.

The project team was of the opinion that the council was nervous of a judicial review if an EIA was not requested, and so exaggerated the justification for their decision; as was evident in their second reason . Consequently, a written request was made to the secretary of state for an EIA screening direction pursuant to Regulation 5(7b) of the EIA Regulations.

The secretary of state dismissed the local planning authority’s first reason for requesting an EIA, stating that he was “not persuaded that there is specific evidence to suggest that this is a development with particularly complex and potentially hazardous environmental effects necessitating an environmental statement. While some noise and traffic disruption is likely, this would be temporary.”

With respect to second reason given by the planning authority, the secretary of state noted: “The site does not fall within or near to a ‘sensitive area’ … or in an area covered by other statutory designations protecting environmentally sensitive interests.

“There is insufficient evidence to support the assertion that the potential impact of the works … may have a significant effect on the ecosystem and on water levels ... these matters can be addressed through the planning process.”

Lessons learned

When reviewing the scheme, the case officer should not have asked for an EIA, and may have been influenced into making use of certain grey areas in Circular 02/99 to justify the need for an assessment.

In reality, political influence in EIA screening decisions is probably not uncommon. The positive or negative view that influential staff in a local planning authority hold in relation to a scheme, or the level of concern about potential judicial review threats, might, in some cases, influence the EIA screening decision. Nonetheless, planning authorities must follow the instructions in Circular 02/99 and not be selective in which elements to embrace or ignore.

Thankfully, seeking a screening direction from the secretary of state can provide the common sense required. Perhaps the long-awaited replacement to Circular 02/99 may erase some of the grey areas?

This article was written as a contribution to the EIA Quality Mark’s commitment to improving EIA practice.

Chris Rochfort, MIEMA CEnv, is a principal environmental consultant at MWH. chris.j.rochfort@uk.mwhglobal.com

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