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• Note on environmental impact assessment directive for local planning authorities

Planning, building and the environment

Note on environmental impact assessment directive for local planning authorities

Background

In the UK, environmental issues have long been taken into account during the planning process. But practice varied throughout the European Community. Member States agreed in 1985 that procedures should be harmonised so that environmental issues were addressed in a more rigorous, scientific and transparent manner. In 1988 the European Directive on the effects of certain public and private projects on the environment came into effect. The Directive, referred to as the EIA Directive, was amended in 1997. The consolidated text of the directive is reproduced at Appendix 1 of our publication Environmental impact assessment: A guide to procedures.

For projects that are subject to approval through the planning system the requirements of the Directive have been transposed into domestic legislation by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293) ('the Regulations'). A copy of these Regulations is available at www.legislation.hmso.gov.uk/si/si1999/19990293.htm

Although the Directive has now been in force for many years some planning authorities may still have had limited practical experience of it. A recent study by the Impacts Assessment Unit at Oxford Brookes University suggests that about 10% of planning authorities may never have undertaken screening to determine whether a proposed development requires environmental impact assessment, and around 50% of authorities may only have limited experience.

This note, in the form of answers to frequently asked questions, offers a brief and basic introduction to the Directive, the Regulations and planning authority responsibilities. It does not offer definitive guidance and is not a substitute for the Regulations or for guidance published in the official Departmental Circular (Circular 02/99: Environmental impact assessment). 

You need to be familiar with these official documents and refer to them when dealing with applications where EIA is involved. But this note may provide a useful aide-memoire to remind you of some the potential pitfalls in cases involving EIA and offer some advice on how you can avoid them. It also refers to some important judgements involving EIA that you should be aware of and note.

What do the Regulations require?

For qualifying projects they require a planning authority to consider, first, whether a proposed project is likely to have a significant effect on the environment. If so, the authority must ensure that the applicant carries out an assessment and prepares and submits to the planning authority a report that identifies, describes and assesses the effects that the project is likely to have on the environment. The process is referred to as Environmental Impact Assessment (EIA), the report as the Environmental Statement (ES).

Members of the public, and statutory consultees, must be given the opportunity to comment on the ES. Before any decision to approve the application may be taken, the planning authority must take into account the ES and any representations made about the environmental effects by the public or consultees. And they must state in their decision that they have done so.

Do the Regulations apply to all applications for planning permission?

No. In the main they apply to large-scale developments where there is obvious potential for environment damage. But the size of a project is not the only criterion. The key issue to be considered is whether a project is likely to have a significant effect on the environment. Small-scale projects in or close to sensitive areas can have effects just as damaging as those from large-scale development.

There are two classes of project. Schedule 1 of the EIA Regulations lists those for which EIA is mandatory. Schedule 2 lists those where the planning authority is required to consider whether the project is likely to have a significant effect on the environment. Where this is the case, EIA must also be carried out. There is no discretion not to require EIA simply because other information about the project is available.

But, a word of caution about the lists of projects.

In legal proceedings, domestic Courts must take account of judgments of the European Court of Justice (ECJ). So far as the EIA Directive is concerned the ECJ has consistently held that in its application it is to be interpreted as having a "wide scope and broad purpose" (Kraaijveld (Dutch Dykes) Case C-72/95). This has implications for Local Planning Authorities (LPAs) when they are screening for EIA.

The wording of the EIA Directive should be interpreted widely. The fact that a particular type of development is not listed specifically within one of the categories of projects in the Directive or the EIA Regulations does not imply that it is not caught. The categories of projects are illustrative, not exhaustive. They should be read in a purposive manner to include similar types of project. Particular care is needed when considering development that could fall within the categories of "industrial estate development" and "urban development projects" listed under 'Infrastructure' projects (Schedule 2.10 projects).

A recent example of how the 'wide scope and broad purpose' applies to England and Wales is found in the Court of Appeal judgment relating to a planning proposal by the Big Yellow Property Company Ltd to construct a storage and distribution facility (Goodman and another v Lewisham London Borough Council [TLR 21/2/03]) The planning authority took the view that as such development was not specifically described in either the Directive or Regulations, there was no need to consider EIA.

Following legal challenge, the Court of Appeal decided that

"in this instance "infrastructure" goes wider, indeed far wider, than the normal understanding, as quoted from the Shorter English Dictionary, of "the installations and services (power stations, sewers, roads, housing etc) regarded as the economic foundations of a country". It held that the decision that the decision that the development was outside the reach of Schedule 2.10(b) of the EIA Regulations was outside the range of reasonableness that was open to the planing authority. The planning permission was quashed and the application remitted to the planning authority for reconsideration.

What are the lessons of these cases?

The messages are clear.

First, the Directive is not open to narrow interpretation. The UK Courts will interpret the Directive in the European sense - i.e. as having wide scope and broad purpose.

Second, do not assume a project is excluded simply because it is not expressly mentioned in either the Directive or the Regulations. For example, neither the Directive nor the EIA Regulations refer to specifically "housing development". But it would be a mistake to consider that housing development does not fall within the ambit of "urban development projects". Moreover, projects can be described in different ways so it's important to consider carefully the scope and purpose of the project - not just its label. A proposal to create a new 'Employment and Enterprise Opportunity Facility' may simply be another way of describing an industrial estate development.

Third, if in doubt about whether EIA is required seek legal advice.

Where EIA is required, what information has to be included in the Environmental Statement?

The ES has to address the direct and indirect effects of the development on a number of factors including the population, fauna, flora, soil, air, water, climatic factors, landscape and archaeology Where alternatives have been considered - eg alternative locations or different ways of executing the projects - these should be reported in the ES. Details of any measures proposed by way of mitigation should be included in the ES. LPAs may wish to ensure that these are expressed so that it is clear what is to be done and by when, and in a way that facilitates the drafting of planning conditions that will enforce the mitigation measures.

The ES must also contain a non-technical summary so that lay persons can understand what is being proposed and its likely effects.

Full detail of the information that has to be included is listed in Schedule 4 of the Regulations

Is there a standard format for an ES?

There is no prescribed format or recommended length. The key issue is that it contains the relevant environmental information specified in Schedule 4 of the EIA Regulations. It may comprise more than one document but in this case it will be helpful if the status of each and its relationship to the others is clearly explained.

In the case of Berkeley v SSETR (2000) [WLR21/7/2000 p420], the House of Lords commented that an ES must not be a "paper chase". Lord Hoffman said, "the point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language."

What action does the planning authority have to take?

The authority's roles involve

• "screening" to determine whether a project requires EIA;
• "scoping" to advise the applicant of the likely, significant effects on the environment that it wants to see addressed in the ES;
• consulting with statutory consultees, members of the public and others who may have views to establish their view on the proposal and the ES; ,
• evaluating the environmental information presented in the ES and any representations made before making a decision; and,
• publicising the decision.

Screening

Screening is the process of deciding which projects require EIA.

An applicant for planning permission may ask the planning authority for a "screening opinion" before submitting the application. If it receives such a request, the authority has to issue an opinion within 3 weeks of the date of receipt. The Regulations do though allow extensions to the 3 week period provided they are agreed in writing with the applicant. If you believe you will be unable to issue a screening opinion within the 3 week timescale you should seek agreement with the applicant to extend it so that you can allow for necessary consultation and issue of a thorough, considered opinion.

If no extension is agreed, and a screening opinion has not been issued with the 3 week period the applicant may ask the Secretary of State to issue a screening direction.

Where a planning application is submitted without an ES, and a screening opinion or screening direction has not previously been issued, the authority must determine whether the application falls within a class of development listed in either Schedule 1 or 2 of the Regulations and, for any that fall within Schedule 2, whether the project will have a significant effect on the environment. Again a period of 3 weeks is allowed from the date the application is received unless a longer period has been agreed.

A copy of the screening opinion/screening direction has to be made available for public inspection at all reasonable hours at the place where the planning register is kept. A copy of the screening opinion should be retained for 2 years.

Who has to carry out the screening opinion?

Normally the officer dealing with the planning application will be responsible for the screening opinion. . But the decision is taken on behalf of the local planning authority. If the decision is to be made by officers, it is important to ensure that they have delegated authority to do so before they make the decision. Failure to comply with such basic administrative rules will leave subsequent planning decisions open to successful legal challenge.

In R v St Edmundsbury Borough Council, ex parte Walton [1999 Env LR 879] a decision of the planning authority to grant planning permission was overturned because a decision not to require EIA was taken by an officer who had no formal delegation. Nor can it be assumed that the planning decision can be saved by an exercise of the Court's discretion based on reconsideration of the screening decision taken after judicial review proceedings are initiated. A note of caution in respect of such reconsideration was given by the court in Regina oao Carlton-Conway v Harrow LBC [TLR 11/7/2002]

What factors are taken into consideration when making a screening opinion?

Given their nature and scale, Schedule 1 projects should be easily identified and it is unlikely that an applicant for such a development would submit a proposal without an EIA. But if not, it should be a fairly straightforward matter to decide that EIA is required.

For projects within a category of development listed in Schedule 2 a screening opinion has to be made if the project meets or exceeds the thresholds and criteria listed in column 2 of the Table at Schedule 2.

Schedule 3 of the Regulations lists factors that have to be taken into account when determining whether these projects are likely to have significant environmental effects. Further indicative guidance is provided in Annex A of Circular 02/99: Environmental impact assessment (reproduced in column 3 of the Table at Appendix 3 of the guide to procedures).

It's important to remember that the thresholds within the indicative guidance are not determinative. Individual projects that fall below these indicative thresholds and criteria may require EIA just as those above them may not. Decisions therefore need to be taken on a case-by-case basis. The important thing is to consider whether the proposed development is likely to have significant environmental effects and to be clear of the reasons for the decision.

Projects that fall below the thresholds and criteria in Column 2 of the Table at Schedule 2 do not generally require EIA and the planning authority need not adopt a screening opinion. In effect, the Regulations have already provided a negative screening opinion.

But there are exceptions to this

• where the proposed project falls in or partly within a sensitive area as defined in Regulation 2(1); or,
• where the Secretary of State has exercised powers under Regulation 4(8) to direct that EIA is required even though it does not meet these thresholds ands criteria. Such a direction will usually be in response to a request by the planning authority.

Is it necessary to have full knowledge of the environmental effects before making a screening decision on whether EIA is needed?

The EIA Directive requires that decisions on whether to grant development consent for specific projects are taken in the full knowledge of the project's likely significant impact on the environment. It also requires a determination to be made of which projects should be made subject to assessment. There is a two stage process - first, deciding whether EIA is required; and second, where it is required, of providing the environmental information.

At the 1st stage, the responsibility is to consider whether the project is likely to have a significant effect on the environment. This calls for the exercise of professional judgment taking into account factors such as nature, scale and location of the project (see Schedule 3 of the EIA Regulations), knowledge of the local area and its environment and evaluation of such information as it is reasonable to expect the applicant to provide at this stage. But the amount of information necessary at this stage does not mean you need to have "full knowledge" of every environmental effect.

Only if it is decided that EIA is required, will full and detailed knowledge of the project's likely significant effects be required.

A helpful judgment in this respect is that of Regina oao Jones v Mansfield DC (January 20, 2003) where Richards J held that in general a lesser degree of information is needed at the 1st stage of deciding whether EIA is required at all than at the 2nd stage where it necessary to provide the information. He commented that

"it is for the authority to judge whether a development would be likely to have significant effects. The authority must make an informed judgment, on the basis of the information available and to any gaps in that information and to any uncertainties that that may exist, as to the likelihood of significant effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends upon the circumstances of the individual case."

The judgment also noted that

"Whether sufficient information is available to enable a judgment to be made as to the likelihood of significant environmental effects is a matter for the authority, subject to review by the court on Wednesbury principles".

Does the screening opinion have to give reasons for the decision?

Where an EIA is required, the authority must provide a written statement giving full reasons for its decision. There is no similar requirement where the authority decides that EIA is not required but equally there is no bar on it from providing reasons if it wishes to do so.

Regardless of whether you decide to give reasons for the decision that EIA is not required it may be prudent for the authority to make and retain for its own use a clear record of all of the issues considered and the reasons for its decision. This will be very useful in the event of any challenge to the planning decision based on refusal to require EIA.

Can screening opinion still be issued outside of the 3-week timescale?

To avoid unnecessary delays it's important that every attempt should be made to issue screening opinions within the statutory 3-week period. The regulations do, however, allow for the authority and the applicant to agree a longer period. Where it is considered unlikely you will be unable to issue a screening opinion within the statutory timescale you should, as early as possible, seek agreement with the applicant to extend it. Such requests should be the exception rather than the rule. Unless there is such agreement, the authority has no legal authority to request an EIA beyond the 3-week period.

But if the authority had not issued a screening opinion and it considered that EIA was required it could seek to persuade the applicant voluntarily to carry out an assessment and provide an ES which would be submitted in accordance with the Regulations. If the applicant was unwilling, the authority can also request the Secretary of State to issue a screening direction to determine whether EIA is required.

Can the authority change its screening opinion?

Yes. But this should done within the statutory period unless there is prior agreement of the applicant to extend the period.

It is possible that additional information about the effects of the project not known to the authority when its screening opinion was given will come to light before a decision is taken on the application. This may happen particularly in cases where pre-application screening opinions are given. If the later information indicates that EIA is required the authority must not ignore it simply because it has already issued an opinion that EIA is not required. If the authority itself is unable to change its opinion, it may request a screening direction from the Secretary of State before any decision is taken on the application, or refuse the planning application.

This was addressed in the case of Fernback and Others v Harrow LBC [TLR 15/5/2001]). In this case the Court held that a "negative" screening opinion issued by an LPA did not determine whether an application for planning permission was "EIA Development" and a "positive" one by the LPA was determinative only in the absence of one by the Secretary of State. On the other hand, an opinion by the Secretary of State, either way, is determinative.

Scoping

Scoping is about setting out the issues to be considered in the ES, the parameters and the broad approach that is to be taken during the assessment. - in effect the important environmental issues.

Applicants for planning permission may request the planning authority to provide a "scoping opinion" on the impacts and issues that the EIA should address - ie those impacts that are likely to be significant. The statutory process requires discussion between the authority, applicant and statutory bodies and a scoping opinion to be issued within 5 weeks of the request or such longer period as may be agreed.

The Regulations require the authority to issue a scoping opinion only in cases where the application has not yet been submitted. But authorities are encouraged to respond favourably to any request from the applicant for a scoping opinion. They may also wish to consider whether they should extend consultations to involve the public and other interested bodies.

Once a scoping opinion is issued can I request further information?

A scoping opinion that is discussed and agreed by all interested parties at the outset should ensure that the relevant issues and potential impacts are identified and reported in the ES. Provided the EIA is properly carried out as agreed in the scoping opinion this should minimise the need to request further information. However, if it believes that further information is necessary the planning authority is able to request it under Regulation 19.

It is important to stress that the authority must obtain all the information it needs to assess and evaluate the likely significant environmental effects of the proposal before it reaches its decision. It cannot adopt a "wait and see" approach or impose a condition requesting further work to identify the likely environmental effects after permission has been granted. It must be sure that all of these have been identified and taken into account before granting planning permission.

R v Cornwall County Council ex parte Jill Hardy [2001 JPL 786] refers to a case in which the applicant carried out an EIA and provided an ES. Although it was known that the conditions at the site were those favoured by a protected species, bats, the applicant did not investigate for their presence as a part of the EIA. The planning authority, advised by English Nature, imposed a condition requiring the applicant to carry out a survey to establish whether bats were present prior to commencing the development. The Court held that this information should have been included in the ES, otherwise the authority could not comply with the EIA Regulations (Regulation 3(2)). The planning permission was quashed.

Does this now mean that conditions cannot be used in cases where the proposed development fall within the scope of the EIA Regulations?

No. They can still be used in the case of EIA development. But planning authorities need to exercise care and judgment to ensure that conditions designed to mitigate the likely effects of a proposed development are not used as a substitute for environmental impact assessment or to circumvent the requirements of the EIA Directive.

It may be useful to refer to relevant recent case law.

Regina oao Lebus v South Cambridgeshire DC [2003 2PLR5] involved development for an egg production unit to house 12,000 free range chickens. A local resident had written to the planning authority in 2000 suggesting that EIA was required for this development. After a meeting and discussion with the applicant, the planning officers dealing with the case took the view that this was not EIA development and the applicant was told informally that EIA was not required. The planning officer dealing with the case made no written record of his conclusions. At the meeting the officers concluded that the potential adverse impacts of the development would be insignificant with proper conditions and management under enforceable under section 106 planning obligations. Planning permission was granted subject to conditions in 2002. The resident challenged the decision by judicial review.

The Court allowed the appeal and quashed the planning permission. So far as planning conditions and EIA are concerned it held that "it is not appropriate for a person charged with making a screening decision to start from the premise that although there may be significant impacts, these can be reduced to insignificance by the application of conditions of various kinds. The appropriate course in such a case is to require an environmental statement and the measures which it is said will reduce their significance".

The message from Lebus is that where proposed development is EIA development the use of conditions cannot be used to substitute for the proper assessment procedure. To do so would simply negate the purposes of the Directive. It is also clear from this case that planning authority staff need to make formal screening opinions on Schedule 2 applications.

The question of planning conditions was also considered in Gillespie v First Secretary of State and Bellway Urban Renewal (TLR 7/4/2003] In this case the First Secretary of State granted planning permission for a housing development on the site of a former gas works. One of the former gasholders was still in situ. Soil surveys on the site had been carried out and revealed contamination but the type and extent was not fully known, particularly of that below the gasholder. The First Secretary of State, however, considered that there was no need for an EIA. He approved the development subject to conditions to carry out a detailed site examination to establish the nature, extent and degree of the site contamination and to remediate it prior to commencement of the development. The remediation strategy would rely upon tried and tested methods so there was no reasons to assume they would be unsuccessful in removing the contamination.

The Court of Appeal held that on considering whether an environmental impact assessment was required before planning permission could be granted the Secretary of State did not have to ignore proposed remediation measures but could not assume that in a case of any complexity they would be successfully implemented.

The extent to which such measures could be taken into account in screening decisions would depend on the facts of each individual development having regard to;

• The extent of the investigation into the impact of the development and environmental problems arising from it, up to the time of the screening decision
• The nature of the proposed remedial measures including uncertainties
• The extent to which those have been particularised
• Their complexity
• The prospects of their successful implementation
• The prospect of adverse environmental effects in the course of the development, even if of a temporary nature
• The final effect of the development

Lessons from Gillespie

Remediation measures need not be ignored when making decisions about the likely significant effects of proposed development. But care and judgment has to be exercised. Remedial measures that are well-established and uncontroversial, eg cleaning wheels of trucks and covering load in lorries to minimise dust etc. may well be taken into account. In more complex development, and/or where the nature of the proposed remediation measures is likely to be more complex and possibly less clearly established, it may be less appropriate to take the proposed measures into account. It is important that the offer of remediation measures is not used to frustrate the purpose of the EIA directive or serve as surrogate for it.

If there is any doubt you should seek legal advice and refer lawyers to these cases.

Do applications to vary planning permission by removing previously attached conditions fall within scope of the Directive?

Yes. An application made under s73 of the TCPA to vary conditions previously attached is in effect an application for a new planning permission. The planning authority therefore has to consider the need for EIA in excatly the same way as any other application.

Consultation

Who has to be consulted, and when?

The Regulations require a planning authority to consult with specified statutory consultees prior to issuing any scoping opinion. It must also give statutory consultees and members of the public an opportunity to comment on any ES and its associated planning application and it must take any relevant views expressed by them into account in reaching its decisions.

There is no requirement to consult either statutory consultees or the public about screening opinions.

Do special provisions apply in advertising development subject to EIA?

Where the ES is submitted with the planning application the authority has to advertise the fact and specify where the application and ES may be inspected at a place on or near the site to which the application relates for a minimum period of 21 days before it may determine the application and must also publicise it in a local newspaper. There is also a specific form of Notice for EIA applications. See Article 8 and Schedule 3 of the General Development Procedure Order 1995. www.legislation.hmso.gov.uk/si/si1995/Uksi_19950419_en_1.htm

Where the ES is submitted after the planning application the applicant is responsible for publicity.

Does further information requested under Regulation 19 also have to be advertised?

Yes.

What if the applicant changes the ES or simply provides more information?

There is no specific provision dealing with amendments or additions to an ES that has already been submitted. Such information would not be regarded as "further information" as this is very specifically defined in the EIA Regulations.

The safest approach is to treat any addition or amendment as an ES submitted during the course of a planning application and to advise the applicant to advertise the whole of the ES, with the amendment/addition, in compliance with regulation 14. This will ensure compliance with the general intent of the EIA Directive to notify and inform people of the possible environmental effects of a proposed development.

Evaluating the Environmental Statement

The planning authority is responsible for evaluating the ES to ensure it addresses all of the relevant environmental issues and that the information is presented accurately, clearly and systematically. It should be prepared to challenge the findings of the ES if it believes they are not adequately supported by scientific evidence. If it believes that key issues are not fully addressed, or not addressed at all, it must request further information. The authority has to ensure that it has in its possession all relevant environmental information about the likely significant environmental effects of the project before it makes its decision whether to grant planning permission. It is too late to address the issues after planning permission has been granted.

Does this also apply to applications for outline planning permission where some matters may be reserved for later determination?

Yes. Where it applies, the Directive requires EIA to be carried out prior to the grant of "development consent". Development consent is defined as "the decision of the competent authority or authorities which entitled the developer to proceed with the development". Under the UK planning system, it is the planning permission that enables the applicant to proceed with the development. Therefore, in the case of outline applications, an EIA application must be properly assessed for possible environmental effects prior to the grant of outline permission.

It will not be possible to carry out an EIA at the reserved matters stage. The planning permission and the conditions attached to it must be designed to prevent the development from taking a form - and having effects - different from what was considered during the EIA.

This was confirmed in the case of R V SSTLR ex parte Diane Barker [2002 EnvLR 631].

For outline planning applications, how should an EIA be carried out so as to comply with the Directive and Regulations?

The cases of R v Rochdale MBC ex parte Tew [1999 3PLR74] and R v Rochdale MBC ex parte Milne [2001 81PCR27] set out the approach that planning authorities need to take when considering EIA in the context of an application for outline planning permission if they are to comply with the Directive and the Regulations.

Both cases dealt with a legal challenge to a decision of the authority to grant outline planning permission for a business park. In both cases an ES was provided. In ex parte Tew the Court upheld a challenge to the decision and quashed the planning permission. In ex parte Milne, the Court rejected the challenge and upheld the authority's decision to grant planning permission.

In ex parte Tew, the authority authorised a scheme based on an illustrative masterplan showing how the development might be developed, but with all details left to reserved matters. The ES assessed the likely environmental effects of the scheme by reference to the illustrative masterplan. However, there was no requirement for the scheme to be developed in accordance with the masterplan and in fact a very different scheme could have been built, the environmental effects of which would not have been properly assessed. The Court held that description of the scheme was not sufficient to enable the main effects of the scheme to be properly assessed, in breach of Schedule 4 of the EIA Regulations.

In ex parte Milne, the ES was more detailed; a Schedule of Development set out the details of the buildings and likely environmental effects, and the masterplan was no longer merely illustrative. Conditions were attached to the permission "to tie the outline permission for the business park to the documents which comprise the application". The outline permission was restricted so that the development that could take place would have to be within the parameters of the matters assessed in the ES. Reserved matters would be restricted to matters that had previously been assessed in the ES. Any application for approval of reserved matters that went beyond the parameters of the ES would be unlawful, as the possible environmental effects would not have been assessed prior to approval.

The Judge emphasised that the Directive and Regulations required the permission to be granted in the full knowledge of the likely significant effects on the environment. This did not mean that developers would have no flexibility in developing a scheme. But such flexibility would have to be properly assessed and taken into account prior to granting outline planning permission.

He also commented that the ES need not contain information about every single environmental effect. The Directive refers only to those that are likely and significant. To ensure it complied with the Directive the authority would have to ensure that these were identified and assessed before it could grant planning permission.

The Court of Appeal in ex parte Diane Barker confirmed this approach.

What are the lessons of the Tew and Milne and Barker cases?

You will want to read these judgments carefully, but there are some general points about applications for outline planning permission:

i). An application for a "bare" outline permission with all matters reserved for later approval is extremely unlikely to comply with the requirement of the EIA Regulations;

ii). When granting outline consent, the permission must be "tied" to the environmental information provided in the ES, and considered and assessed by the authority prior to approval. This can be usually done by conditions although it would also be possible to achieve this by a section 106 agreement. An example of a condition was referred to in ex parte Milne. "The development on this site shall be carried out in substantial accordance with the layout included within the Development Framework document submitted as part of the application and shown on (a) drawing entitled 'Master Plan with Building Layouts'." The reason for this condition was given as "The layout of the proposed Business Park is the subject of an Environmental Impact Assessment and any material alteration to the layout may have an impact which has not been assessed by that process." (see paras 28 and 131 of the judgment);

iii). Developers are not precluded from having a degree of flexibility in how a scheme may be developed. But each option will need to have been properly assessed and be within the remit of the outline permission

iv). Development carried out pursuant to a reserved matters consent granted for a matter that does not fall within the remit of the outline consent will be unlawful.

EIA and Unauthorised Development

If development has started with first obtaining the relevant planning permission is it necessary to carry out an EIA?

We think it unlikely that development that falls within a category in either Schedule 1 or 2 of the EIA Regulations would begin without having first obtained all necessary permissions, including planning permission. But in the event that it does you will still need to take account of the EIA Directive.

Regulation 25 of the EIA Regulations explains the procedures.

But what if the LPA decides the "breach" of planning control doesn't warrant enforcement action?

The exercise of enforcement powers provided in the Town and Country Planning Act is at the discretion of local authorities. However, that discretion cannot over-ride the requirements of the EIA Directive. When considering whether to take enforcement proceedings planning authorities must therefore consider whether the development is EIA development - i.e. whether it falls within Schedule 1 or 2 and is likely to have significant environmental effects - before it takes its decision.

If the planning authority concludes the development is not EIA development - and issues a screening opinion to that effect - it will be free to exercise its discretion over enforcement proceedings. However, if it concludes the development is EIA development, then its exercise of discretion will be limited by the need to comply with the legal requirements of the Directive.

What if I fail to comply with the Regulations?

It's possible that proceedings will be initiated by an aggrieved party either through the domestic Courts or by reference to the European Commission.

Domestic challenges

It should be evident from the Court cases referred to that failing to comply with the Regulations may make a decision to grant planning permission unlawful and lead to it being quashed by the Court. Although the Court has the power not to quash planning decisions where there has been procedural impropriety, this discretion is very limited in cases involving EIA because of the duty to comply with EC legislation. It can only be exercised where there had been "substantial compliance" with the Directive.

If the project is one to which the Regulations apply it is essential to comply fully with them. It is not sufficient to argue that EIA was not necessary because all of the information that could have been in the ES was available elsewhere and was taken into account before the decision was taken; or that had an ES been available the decision would have been the same.

In Berkeley v SSETR, the House of Lords unanimously emphasised the need to comply with the Regulations. It took the view that when considering compliance with the Regulations it was necessary to consider the EIA Directive. The Lords stressed that the importance of the EIA process extended beyond the decision on the application. Its purpose is to provide individual citizens with sufficient information about the possible effects and give them the opportunity to make representations. The Court was not entitled to decide after the decision had been made that the requirement of an EIA could be dispensed with on the ground that the outcome would have been the same even if these procedures had been followed. In his leading judgment, Lord Hoffman noted that the Directive did not allow Member States to treat "a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the information which should have been provided by the developer".

Complaints to the European Commission

Individuals may, and frequently do, complain to the European Commission that planning applications should have been subject to EIA, or that where an EIA was undertaken the procedures were not followed correctly or the information in the Environmental Statement was inadequate. This can lead to formal legal proceedings between the Commission and the United Kingdom. This can be lengthy and prolonged and can create uncertainty for developers and planning authorities.

How can I avoid legal challenge?

Nothing can guarantee there will be no legal challenge. But you can minimise the risk of a challenge being successful by taking care to ensure compliance with all of the Regulations. In particular you should ensure that:

• Planning applications are properly screened and copies of screening opinions are placed on the planning register;
• The Regulations are interpreted in accordance with judgments of the European and domestic courts - they have a wide scope and broad purpose. For example, housing development should not be excluded because it is not expressly referred to in the Directive or Regulations. If you are in doubt whether a proposed development falls within scope of the Regulations seek legal advice;
• Planning conditions designed to mitigate adverse environmental effects are not used as an alternative to a proper EIA or to frustrate the objectives of the Directive and implementing regulations;
• Environmental Statements contain all of the information required by Schedule 4 of the Regulations;
• All of the likely significant effects that the project will have on the environment have been identified and taken into account prior to a decision to allow the project to go ahead;
• The permission that is granted relates only to the project whose environmental effects have been described, assessed and mitigated in the ES. If the ES describes and assesses the effects of burning a single specific type of fuel in a manufacturing process, the consent for the project should be limited to its operation only with the fuel that has been assessed.
• Keep a record of your decisions and why you have reached them