Clarification of Environmental Impact Assessment Law through Judicial Decisions

As more large housing schemes are subject to Environmental Impact Assessment (EIA) we consider some recent decisions which suggest that planning permission is subject to EIA even if environmental criteria have been considered, and at what stage this assessment is necessary.

In Berkeley v Secretary of State for the Environment Transport and the Regions and Fulham Football Club (no. 1) (2000) ENV LR 16 an application was approved for residential development and redevelopment of the Craven Cottage football stadium, including some encroachment onto the river Thames. No EIA was carried out and the House of Lords quashed the planning permission.

The need to follow EIA procedures has been confirmed in further decisions, highlighting that if a planning application should have been subject to EIA it will not be permitted on the strength that the environmental criteria have been considered, and the formal EIA process must be adhered to. In the past developers have attempted to side step the need for EIA by ‘salami slicing’ projects into smaller components of one large development. This has been held to be unacceptable. In R v Secretary of State for transport ex parte Surrey CC (1993) Unreported a decision was required to ascertain if an EIA was necessary for the addition of a 3 lane link road to the M25.

It was held that the full scheme was to be considered, not its individual parts. Outline permissions and Reserved Matters applications have in the past raised debate over when EIA is required. In R v Rochdale MBC ex parte Tew (2000) Env LR 1 outline permission was granted for a business park. A third party attempted to quash the decision on the grounds that insufficient information had been submitted to identify the environmental impacts. This was based on the requirement of the 1988 EIA Regulations, that applications for planning permission must include the ‘design and size or scale of the project’. In this case planning permission was quashed as the courts agreed that not enough information was submitted.

Following this decision the developers submitted a second application which was approved. This was again taken to the High Court and this time it was found that enough information had been submitted, as the conditions of the planning permission tied the development to a masterplan and limited the consent to certain activities and buildings, so planning permission was upheld. This demonstrates that an application which is subject to EIA can be submitted in outline, however it is necessary that the details relating to the design and size or scale of the project are included in the application. The UK courts have also decided that when considering an outline application, the screening decision must be made at the outline application stage, not the reserved matters phase. R (on the application of Barker) v Bromley LBC (2001 EWCA Civ 1766 has recently tested this.

The House of Lords requested a ruling from the European Courts of Justice. This decision was made in May 2006 and ruled that an EIA can be required at the reserved matters stage, thus overruling previous UK decisions. This now means that applications that have been approved in outline may be subject to EIA procedures later when reserved matters are submitted. In light of this decision we recommend that the LPA is requested to give a screening opinion at both outline and reserved matters stages. The courts can only test the legality of the decision not the merits of the planning decisions so judicial decisions cannot address the effectiveness of EIA legislation. However, providing case law for further developments remains vitally important, and we will continue to monitor and advise our clients on these decisions.