Transcript PLANNING LAW UPDATE - Cornerstone Barristers

Environmental Impact
Assessment
- an update -
Mrs HARRIET TOWNSEND
2-3 GRAY’S INN SQUARE
“On planning we have already legislated to
make major changes, but in frankness, I
believe we have much more to do.”
Gordon Brown to the CBI 5th June 2006
Legislation 2006 included…
10th August 2006
• S42(1) of the PCPA 2004 brought into force – new s62 of
the TCPA 1990
• SI 2006/1062 amended the GDPO 1995
Legislation 2006 included …
Effect
• The definition of outline appl has not changed
• The categories of those matters which may be reserved
is defined Art 3(1) GDPO
• Lpa have greater powers to require additional
information as part of and in support of an application for
pp [s62(3)]
• Unless an appl falls within one of categories specified a
design and access statement is required
• The GDPO [Art 3(3)-(5)] set out min info required for
every OL appl
Legislation 2006 intended…
Intended, at least in part, to provide statutory backing to the
existing case law in the Rochdale line of cases [“bare”
outlines are unlikely to provide sufficient information to
enable EIA to be carried out].
The focus is on making OL permissions more robust – little
attention in legislation or policy given to procedures for
assessment of reserved matters applications.
Barker
While the Government was bringing these measures into
force, the ECJ was looking closely at whether the UK’s
failure to provide for EIA at reserved matters stage is a
failure fully to implement the EIA Directive [85/337/EEC].
It is: Commission v UK and Barker v LB Bromley
[judgment in both given on 4-5-06].
Barker - facts
• Diane Barker lived nr Crystal Palace where major
recreational/leisure devt was proposed in an outline appl
in 1997 [under 1988 EIA Regs]. No EIA at that stage. A
limited challenge was unsuccessful.
• At reserved matters stage the LB Bromley was advised
they had no power to require EIA. They approved the rm
appl in 1999.
• These permissions eventually lapsed during the litigation
which followed.
The EIA Directive
• Full title: Assessment of the Effects of Certain Public and
Private Projects on the Environment, 1985 amended
1997
• It has direct effect and can therefore be relied upon by
individuals in domestic proceedings against the state or
emanations of the state (eg lpas)
• UK: 1988 then 1999 Regs
The EIA Directive
• “whereas [certain approved programmes] affirm the need
to take effects on the environment into account at the
earliest possible stage in all the technical planning and
decision-making processes;” [preamble]
• "development consent“ means: the decision of the
competent authority or authorities which entitles the
developer to proceed with the project. [Art 1]
The EIA Directive
• “Member States shall adopt all measures necessary to
ensure that, before consent is given, projects likely to
have significant effects on the environment by virtue inter
alia, of their nature, size or location are made subject to
an assessment with regard to their effects. These
projects are defined in Article 4.” [Art 2(1)]
• Annex I projects shall be subjected to assessment.
Annex II projects shall be subjected to assessment
“where Member States consider that their characteristics
so require”. [Art 4] Schedules 1 and 2 to the 1999 Regs
are derived from Annex I and II of the Directive.
Barker • B claimed both the outline consent and the approval of
reserved matters were unlawful.
• The essence of B’s argument was that the Council could
and should have considered whether EIA was required.
They should have “screened” the development.
Barker –
• The project was an urban devt project within class 10(b)
of Annex II to the Directive and Schedule 2 to the Regs.
In such a case screening is required at planning
application stage.
• Why not at reserved matters stage? No provision is
made for this in the UK Regulations. The UK argued that
the outline planning permission was the “development
consent” for the purposes of the Directive and that the
reserved matters approval merely implemented that
consent.
Barker –
ECJ ruled
1. Classification of a decision as a “development consent”
[within Art 1(2)] must be carried out pursuant to national
law in a manner consistent with Community law.
2. Arts 2(1) and 4(2) of the Directive are to be interpreted
as requiring EIA to be carried out if, in the case of grant
of consent comprising more than one stage, it becomes
apparent, in the course of the second stage, that the
project is likely to have significant effects on the
environment by virtue inter alia of its nature, size or
location.
Surprised?
The Barker ruling from the ECJ is far reaching in its effect
but surely not surprising
• Wells v STLGR [2004] ECR I-723
old mining permissions
• Noble v Thanet DC [2006] Env LR 8
lpa lawfully carried out screening exercise at
reserved matters stage
• Commission v UK [2006] QB 764
infraction proceedings brought on the same point as
Barker 1 Dec 2003
Barker House of Lords - 6-12-06. Lord Hope
Declaration:
(1) By precluding any consideration for the need for an EIA
at the stage when, following the grant of outline
planning permission, consideration is being given to an
application for approval of reserved maters the 1988
Regulations failed fully and properly to implement the
Directive, and
(2) the Council misdirected itself in law when it decided
that it had no power to require an EIA to be carried out
in accordance with the requirements of the Directive at
that stage. [see at 30 of 2006 UKHL 52]
Barker –
Other guidance from the unanimous HL
• The outline permission included a standard condition requiring
details to be submitted to and approved by the lpa before
development is commenced. “Any grant of planning permission
which contains a condition in these terms must be regarded as a
multi-stage development consent for the purposes of the Directive.
• “It does not follow however where planning consent for a
development takes this form, that consideration must be given to the
need for an EIA at each stage in the multi-consent process....The
need for an EIA at the reserved maters stage will depend on the
extent to which the environmental effects have been identified at the
earlier stage.”
Paras 21-22
Barker Other guidance from the unanimous HL
• For schedule 2 devt the authority must decide at the outset whether
an EIA is needed ie at the outline stage
• If sufficient info is given at the outset it ought to be possible to
determine whether the EIA will take account of all the potential
environmental effects that are likely to follow as consideration of the
project proceeds to the next stage.
• Conditions designed to ensure that the project remains strictly within
the scope of that assessment will minimise the risk that effects will
not be identifiable until reserved matters. It is only if those effects
are not identifiable until the time of the reserved matters decision
that the assessment should be carried out in the course of that
procedure
Barker • R v Rochdale MBC ex pTew (the first of the two Rochdale
decisions) concerning the adequacy of an outline consent: Sullivan
J’s observation that “if significant adverse impacts on the
environment are identified at the reserved matters stage and it is
then realised that mitigation measures will be inadequate, the lpa is
powerless to prevent the development from proceeding must now be
regarded as unsound. If it is likely that there will be significant effects
on the environment which have not previously been identified, an
EIA must be carried out at the reserved matters stage before
consent is given for the development.”
[para 29 HL]
DCLG
• Letter Colin Byrne of DCLG to Chief Planning Officers
30-6-06 gives interim guidance. Interim as await
outcome of Barker in the House of Lords.
• As at 6-3-07 DCLG hopes to produce new Regs by midyear with Circular Guidance. But another Barker is
resource-hungry.
DCLG interim guidance
• It is specific to applications for approval of reserved matters.
• As the EIA Directive has direct effect lpas should satisfy themselves
that they have met the requirements of the EIA Directive when
considering approval of reserved matters even thought this is not
currently required by UK legislation
• This may be required where likely significant effects are identified at
the rm stage which either
a) were not identifiable or identified at the OL stage or
b) were identifiable but which now require a fresh assessment
probably because of a significant change of circumstances.
DCLG interim guidance
At reserved matters stage:• Where EIA was undertaken – provided sufficient
information given at the OPP stage, further EIA is
unlikely to be necessary.
• Where EIA not considered necessary - “provided the
screening process at the OPP stage was undertaken
properly and in accordance with the guidance in 02/99”
EIA unlikely to be necessary
• Where failed to consider the need for EIA at OPP stage
“the need to revisit EIA at the approval of reserved
matters stage is most likely to be required.”
DCLG interim guidance
• Whenever a lpa receives an appl for approval of reserved matters it
should screen the development again “to determine whether all of
the likely environmental significant effects have been considered …
Where the detail at reserved matters has revealed new or additional
likely significant effects on the environment not identified and/or
assessed at the OPP stage, the approval of reserved matters
without obtaining the necessary environmental information is likely
to be in breach of the Directive and thus unlawful.”
• The EIA required could take the form of a supplemental EIA or
addendum to an existing EIA but it must be “comprehensive”.
• If the applicant fails to carry out EIA the lpa must either refuse the
approval of reserved matters or defer determination until an EIA is
provided.
What does it all mean?
• The grant of planning permission in the UK is or may be a multistage development consent.
• LPAs should screen applications rigorously at the first stage of this
process but will also need to screen at later stages.
• If, therefore, they decide that development is not EIA development
they will need to know why that decision was made in order reliably
to assess whether the later stage of consent raises new and
previously unassessed likely significant impacts.
• LPAs should use their powers to obtain sufficient information at the
first stage of the consent process to ensure EIA is comprehensive
and that conditions hold the consent within the scope of that
assessed.
What should lpas do?
Screening procedures need to be robust. Adopt a stage by
stage process as follows
1. Must screen if the project is Schedule 1 or Schedule 2
development. This is a question of law – Goodman v
Lewisham [2003] Env LR 28
2. If the project is within Schedule 1 it is EIA development.
If it is Schedule 2 devt assess whether it is “likely to
have significant effects on the environment by virtue of
factors such as its nature, size or location” taking into
account such of the criteria in Schedule 3 as are
relevant to the development. This is a question of
judgment.
What should lpas do?
• Ensure experienced officer with delegated power to
adopt a screening opinion carries out the screening
process. Always record reasons for the screening
decision - whether or not required by Regs. Note on the
file which category of Schedule 2 the development falls
within.
• If EIA is necessary at reserved matters but is not
followed by the developer, it may be necessary to refuse
permission.
What should lpas do
• Consider carefully how to use their powers, in particular
those most recently granted, to secure sufficient
information at the outline stage, and to control the
consent by condition so as to minimise the number of
occasions on which it will be necessary to re-open the
EIA process at subsequent stages of the development
consent.
Unanswered questions #1
• Faced with a lpa’s requirement for EIA at the reserved
matters stage, can developers request a screening
direction of the SoS? Probably (in my opinion). However,
interim guidance from DCLG does not deal with or
recognise this. An alternative is for the developer to
appeal the refusal of planning permission and hope for a
negative screening decision from the SoS on appeal.
Unanswered questions #2
• Can the details submitted at reserved matters re-open
the principle of development? The EIA required, if any, at
a stage subsequent to the outline or initial stage, may
(but is unlikely to) reopen the principle of development.
Much greater use is likely to be made of scoping
opinions to guide the content of EIA required at a second
or subsequent stage.
Unanswered questions #3
• Can the need for an EIA arising at the reserved matters
stage reopen the question whether an EIA should have
been obtained at the outline stage? In principle, yes.
Unanswered questions #4
• What about other conditions reserving details for
subsequent approval? Any condition which reserves
details for subsequent approval and which withholds the
right to develop pending approval represents a stage in
the development consent which could in theory give rise
to the need for EIA of the implications of those works.
[eg where a scheme for drainage works is required
to be submitted for approval as in model
condition40]
Unanswered questions #5
• Where a project with outline consent is to be developed
in phases and a reserved matters application is made in
relation to part, is “the development consent” the part or
the whole? Take care with this but probably the part, plus
any parts already permitted – there is no need to
speculate about the future.
- Mrs HARRIET TOWNSEND -