QMark - experience of Secretary of State screening directions

11th January 2016


Related Topics

Related tags

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

Author

Kevin Combes

Arwel Owen, senior associate at David Lock Associates, considers recent experience in seeking secretary of state Environmental Impact Assessment (EIA) screening directions.

It reviews the legislative provisions for requesting a screening direction and considers recent case law in relation to screening directions.

Screening directions can be requested in the following circumstances:

  • at the secretary of state’s own volition (article 8(a));
  • if requested to by a third party (article 8(b));
  • by a person minded to carry out development following the failure of a planning authority to adopt a screening opinion when requested to do so (article 5(7)(a)); or
  • by a person minded to carry out development following a decision by a planning authority that the project is EIA development (article 5(7)(b)).

Why seek a screening direction?

The Town and Country Planning (Environmental Impact Assessment) (Amendment) regulations 2015 increased the thresholds at which a development should be screened to determine whether an EIA is necessary to more than 150 homes, or an area greater than five hectares.

Under Planning Practice Guidance , the government has published indicative criteria and thresholds for screening which are intended to help determine whether significant effects are likely . For development projects, the threshold is more than 1,000 homes .

Taken together, the effect of legislation and practice guidance is to significantly increase the threshold at which EIA may be required.

Where a planning authority adopts a screening opinion and decides that a project is EIA development, but the characteristics and scale of the proposal fall below the thresholds given by government, there can be merit in the developer seeking a secretary of state screening direction.

This is exactly the approach David Lock Associates took on behalf of clients on two occasions. In both cases, a screening opinion issued by a local planning authority (LPA) determining that a project is EIA development was overruled by a screening direction issued by the secretary of state.

In November 2011, a proposal for 500 homes and other uses was the subject of a screening request to Ribble Valley Borough Council . The LPA ruled that the project would constitute EIA development, a decision that was informed by the thresholds that were applicable at the time and the scale of the proposed development. A request for a screening direction was made to the secretary of state, who determined that the proposal was not EIA development.

In September 2015, a proposal for 650 homes and other uses was the subject of a screening request to Central Bedfordshire Council. By then, the 2015 regulations and new practice guidance thresholds had come into force. The LPA concluded that the project would constitute EIA development as it exceeded the thresholds in the regulations and also had potential for cumulative impact.

A request was made to the secretary of state for a screening direction, emphasising that the scale of development was significantly below the indicative thresholds set out in the guidance, and providing a reasoned justification as to why the council’s opinion was flawed. The secretary of state determined that the proposal would not constitute EIA development, citing the guidance.

The effect of a direction made by the secretary of state was tested at the High Court in Roskilly v Cornwall Council . A Review of Minerals Permission application had been granted after the LPA adopted a screening opinion that the development needed to go through EIA, even though there was an outstanding request for a screening direction.

In quashing this permission, Mr Justice Dove found that planning permission could not be granted in the absence of necessary environmental information, in accordance with regulation 3(4) of the EIA regulations.

Conclusions

Changes in regulations and practice guidance provide increased scope for projects to fall below the threshold at which an EIA may be necessary. Where planning authorities conclude that a project comprises EIA development, practice demonstrates that seeking a secretary of state screening direction may result in a different conclusion due to the revised regulatory thresholds, and to the indicative thresholds and criteria set out in guidance.

Case law provides that a screening direction is determinative, and reminds planning authorities and other decision makers to exercise caution in determining planning applications where a request for a secretary of state screening direction is outstanding.

Subscribe

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


Transform articles

Advice note on health impact assessments

An advice note on health impact assessments and health in environmental assessments is set to be published by IEMA soon.

31st May 2024

Read more

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

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