Fruitful grounds of legal challenge
The EIA Regulations transpose the European EIA Directive into English law. This is with the intention of providing decision-makers and the public with information about the likely environmental effects of projects during the process of determining whether they should be granted planning permission. Though a valuable aid to decision-making and an opportunity to inform stakeholders of the environmental implications for major schemes, the EIA Regulations continue to provide fruitful grounds of legal challenge for objectors seeking to frustrate development.
Sometimes definitely required
An environmental statement setting out the likely significant environmental effects of a development is definitely required where a development falls within Schedule 1 of the EIA Regulations. This lists major infrastructure projects such as power stations and major ports.
Sometimes potentially required
However, matters are more complex for the generally smaller scale “infrastructure projects” listed in Schedule 2.
Schedule 2 contains a table. The first column sets out types of development. One example is “urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas”. The second column sets out thresholds and criteria. For “urban development projects”, for example, two of these are whether there will be more than 1 hectare of non-housing urban development or there will be more than 150 dwellings.
If proposals of a particular type listed in column one either meet the thresholds and criteria in column two, usually meaning that they are of a particular size, or are in a “sensitive area”, they have to proceed to the “screening” stage. This is where the local planning authority has to form a view on whether an environmental statement is needed because the proposals are considered likely to have significant effects on the environment. Factors include the proposals’ nature, size or location.
The EIA Regulations make it clear that proposals which fall below the thresholds in Schedule 2, and are not actually being carried out within one of the defined kinds of “sensitive areas”, do not need even need to be screened and do not require an environmental statement.
And “sensitive areas” is not a general term, being specifically defined as sites of special scientific interest, European sites (e.g. special protection areas and special areas of conservation), areas of outstanding natural beauty, national parks, the Broads, world heritage sites and scheduled monuments.
Not intended to be all-encompassing
Counterintuitively, for example, this means that a local planning authority cannot itself compel a developer to submit an environmental statement for an “urban development project” which, for example, involves the construction of a tall office building on a contaminated site in a built up location but which falls outside of defined “sensitive areas” and is on a plot smaller than 1 hectare.
This is even if overall the proposals might give rise to likely significant environmental effects. The Courts have ruled that this is because the EIA Directive itself, which the EIA Regulations transpose into English law, was not intended to prevent all development which might have likely effects on the environment. It was intended to improve the quality of the decision-making process in particular categories of development, which it was left to Member States to determine in national legislation.
And, indeed, in 2015 the Government raised the screening thresholds for urban development. This was because it considered that the EIA screening requirements for projects on sites as small as 0.5 hectares was adding “unnecessary burdens on developers and local planning authorities and slowing down the delivery of homes and other urban development while delivering no additional environmental benefits".
On the face of it, this means that where projects do not meet the Schedule 2 criteria or thresholds for screening, and are outside of “sensitive areas” there should generally be no reason to start thinking about whether proposals are actually likely to have significant effects on the environment by virtue of their nature, size, location or otherwise. The Government’s Planning Practice Guidance confirms this approach.
Thinking about volunteering
And yet there are still reasons why in certain circumstances a developer might give thought as to whether it should submit an environmental statement anyway.
Secretary of State directions
The EIA Regulations provide the Secretary of State with residual discretion to direct that any Schedule 2 development still needs an environmental statement, even if even if it is not in a “sensitive area” or does not meet the thresholds or criteria in Schedule 2. It is open to a local planning authority or, indeed, an objector to request such a direction.
The Courts have confirmed that the EIA Regulations require the Secretary of State in such circumstances to apply effectively the same tests as for screening, i.e. whether the development is likely to have significant effects on the environment by virtue of their nature, size, location or otherwise, including relevant criteria from Schedule 3 of the EIA Regulations, grouped under the headings “characteristics of the development”, “location of the development” and “characteristics of the potential impact”.
In other words, the Secretary of State will look at the proposals in the round, at the wider location and cumulative impacts, as if the proposals had been taken forward to the screening stage.
One practical scenario where a developer might consider a Secretary of State direction to be a possibility might include where the site’s size is quite close to the threshold and, arguably, a different means of calculating that size would take it above the threshold. Another might be where strict application of the EIA Regulations does not necessitate an environmental statement but, objectively speaking, that is a bizarre result in the context of the development proposals.
What would a direction mean for your proposals?
Though the Secretary of State rarely makes such directions, the possibility that one could be made, as described above, means that developers should always at least consider at the outset with their environmental and legal teams what the chances are of a request for a direction being made, by any party, and what the Secretary of State’s conclusions might be if the request were made.
The developer may well envisage preparing a suite of reports and assessments on relevant environmental matters for the local planning authority in any case, even where the EIA Regulations do not require screening or a formal environmental statement. This is because such matters are likely to be material planning considerations, as part of the local planning authority weighing the benefits against the disbenefits of the proposals, irrespective of the EIA Regulations.
Nonetheless, if a Secretary of State direction were only made mid-way through an application, there would be significant delay as the developer’s team upgraded those reports and assessments into a formal environmental statement, or had to wait until the next available window for particular surveys needed to comply with the EIA Regulations. So, if there is likely to be concerted objection and lobbying of the Secretary of State to exercise his residual discretion to make a direction, a developer might think it worthwhile to pre-empt that with an environmental statement so as to avoid uncertainty and later delays.
There has also been a recent decision by the Courts, Roskilly v Cornwall Council, that where a request has been made for a screening direction from the Secretary of State, but the direction is made after planning permission has been granted, because of some delay, that permission will be unlawful (and quashed) if the direction requires an environmental statement.
The decision is a surprising one and has not been appealed. Though it applies to screening directions, its logic would apply equally to a direction confirming that an environmental statement is needed for development which, strictly speaking on the wording of the EIA Regulations, does not even need to be screened.
If there is a chance of such a direction being requested and made, this militates towards the developer voluntarily submitting an environmental statement.
A risk-based approach
The EIA Regulations are all-or-nothing. Once a developer has opted in, by volunteering an environmental statement, the EIA Regulations apply in the same way as if the environmental statement had been actually been required by a screening opinion or direction.
There are disadvantages in going down the route of an environmental statement where none is required on the face of the EIA Regulations. There are additional publicity requirements. A slightly longer determination deadline applies to the local planning authority than a standard planning application (16 weeks). This would also interfere with using permitted development rights, if these were to be relied upon for parts of the development.
It would not be appropriate to adopt the position as a matter of course that all developments should submit unnecessary environmental statements out of an abundance of caution.
This would run counter to the EIA Regulations themselves and the Government’s impetus towards reducing needless red tape wherever possible.
Nonetheless, a developer with appropriate legal and environmental consultant advice might well consider that a small number of borderline schemes, particularly ones near generally sensitive locations or which are likely to attract controversy, might benefit from the greater certainties of cost, programme and outcome that voluntary submission of an environmental statement could bring where there are grey areas.
Town and Country Planning (Environmental Impact Assessment) Regulations 2011
Directive 85/337/EEC as amended
Berkeley v Secretary of State for the Environment Transport and the Regions and another  EWCA Civ 1012
The Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2015
The Impact Assessment for The Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2015
R (on the application of Save Britain's Heritage) v Secretary of State for Communities and Local Government  EWHC 2268 (Admin
R (on the application of Roskilly) v Cornwall Council and others  All ER (D) 38 (Jan)