Protecting a developer from unreasonable requirements

29th April 2015


Related Topics

Related tags

  • Management

Author

Neil Johnson

Michael Philips, principal consultant at Dulas, explores the consequences of confusion over whether part of a project needed to undergo EIA.

The Reeves Hill wind farm scheme, east of Knighton near the Shropshire Hills, received consent in 2012 after four years in the planning system and a series of challenges and high court actions. But that was just the start of the difficulties.

The wind farm was deemed EIA development under the criteria in schedules two and three of the 1999 regulations. But while the wind turbines and associated infrastructure were initially deemed acceptable following scrutiny of the environmental statement and supplementary environmental information (SEI), the access arrangements to the site were not. As such an alternative access arrangement was sought, which was then subject to a separate planning application to a neighbouring planning authority.

The neighbouring authority was asked to screen the access track to decide if it was EIA development. It decided that it was not, and a planning application comprising an environmental report was prepared and submitted. However, this stalled in the planning process owing to a regulation 19 request for more information on the wind farm. Although the wind farm had been approved by committee, a decision notice had not yet been issued.

Once the regulation 19 was suitably addressed through a further SEI submission, and a decision notice for approval of the wind farm had been issued, the access track application was reactivated. However, a barrister auditing the planning documentation on behalf of the applicant deemed that the original screening opinion was at risk of challenge. The applicant submitted a further screening request to the local authority. Given the history of the projects, it was highly likely that the opponents of the scheme would pick up the unlawful nature of the original screening opinion, risking another legal review.

The local authority this time deferred the screening decision to Welsh ministers, who determined that that access track was EIA development due to its close interdependency with the wind farm.

The direction relied solely on the opinion of a statutory undertaker in respect of a heritage feature, who had not investigated the potential claims of effects to a historic feature independently and had not visited the development sites.

Considerable debate ensued as to whether the access track should be deemed EIA development solely on the basis of its association with the wind farm. In the applicant’s opinion, there would be no cumulative effects from the two elements of the development on the historic feature in question and it requested that the decision was reversed. However, according to the ministers, European commission guidelines advised that because the track was solely to provide access to the wind farm, the two developments needed to be considered under the EIA regulations together.

The ministers added that the principal question was whether there was sufficient information available to enable the local authority to make an assessment of the likely environmental effects of the project. They concluded that was that there was not and that therefore EIA was required.

Predicted view of Reeves Hill

All this could have been avoided if the local authority or the Welsh ministers had requested further information, and visited the site to determine the relationship between the two developments and their potential environmental impacts. Cumulative modelling of the zones of theoretical visibility for both developments, along with a site visit would have established no potential for cumulative effects, leading to a decision removing the need for an EIA on the access track.

At the time of writing, the access track application has still not been determined, while the period of the planning permission for the wind farm nears its expiration date.

Subscribe

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