EIA screening: themes from the recent case law Zoë Leventhal Landmark Chambers 13 March 2015 At Oxford City Council
Introduction Reminder of key legal principles Review of case law from last 18 months Key themes: Test court will apply how does it operate in practice? Witness statements when will court accept these? Discretion not to quash how has this been exercised? Practical exercise
TCPA (EIA) Regulations 2011/1824 as amended: The basics (1) Prohibition on granting planning permission for EIA development without consideration of environmental info: reg 3 EIA development: Sch 1 development; or Sch 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location NB Sch 2 thresholds amended as of 6.4.15 (SI 2015/660) e.g. urban development projects = now 1ha of non-dwellinghouse development, 150 or more dwellinghouses or overall development area exceeds 5ha (previously just area of more than 0.5ha)
The basics (2) screening opinions Screening opinion to determine whether EIA development Must take into account (relevant) Sch 3 selection criteria: reg 4(6). NB also Circular 2/99 and Commission Guidance. Must be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion reg 4(7)(a) Must send a copy to the applicant reg 4(7)(b), Must take steps to secure that copy of screening opinion appears on Part 1 of the planning register reg 23(1), and before application made, must be made publicly available (2)
Legal principles: summary (1) Key question: is the development likely to have significant effects on the environment focusing on circumstances of particular case (Loader v SSCLG) Question of judgment for LPA in question: Wednesbury review - Court will only interfere if irrational / error of law (e.g. opinion fails to engage with test) (Jones, Loader) Opinion can be brief, but must give clearly and precisely the full reasons for that conclusion : reg 4(7) 2011 Regs
Legal principles: summary (2) Standard/test is whether the opinion: provide[s] sufficient information to enable anyone interested in the decision to see that proper consideration has been has been given to the possible environmental effects of the development and to understand the reasons for the decision (Mellor v SSCLG at [21]) Read in context of request made for it (Mellor) This sufficient information can be included in a subsequent communication (Mellor)
Wednesbury test in practice 3 recent examples: CBRE Lionbrook v Rugby BC : whether a further screening opinion needed (reg 7) judgment for local authority Gilbert v SSCLG (CA): precautionary principle contextual and its application to noise measures a question of judgment Oldfield v SSCLG (CA): Court prepared to give SSCLG leeway even where not a masterpiece of drafting (despite saying no need for a cumulative assessment - could be read in line with earlier cumulative assessments)
Witness statements: elucidation or ex post facto rationalisation? Context: Ermakov, Lanner, Ioannou evidence from d-maker should clarify/elucidate but should not be inconsistent otherwise will be impermissible (decision stands as reasons) But here: Mellor subsequent communication acceptable Generally courts willing to consider/accept evidence where it expands, gives further detail But not where it is flatly inconsistent with opinion itself question is whether d maker had factors in mind at time Contemporaneous evidence will assist But NB a good w/s may assist on discretion to quash
Witness statements: examples 4 recent examples 2 saved by w/s, 2 not possible: Jedwell v Derbyshire CC : further reasons could sit with original opinion R (Plant) v Pembrokeshire CC: further reasons clarified any residual inconsistency between checklist + opinion Mouring v West Berkshire: no opinion, draft witness statement rejected by officer in question (!) Hughes v South Lakeland DC: opinion did not engage with factors, witness statement was inconsistent with it. But it showed that would have been negative so not quashed
Witness statement: summary of principles Squaring the circle - Foskett J in Jedwell at [66]: There is nothing in Mellor, on my reading of the decision that entitles a planning authority lawfully to arrive at a screening opinion on wholly inadequate reasoning and then to seek to justify that opinion by some ex post facto rationalisation of the opinion. What Mellor permits, in my view is the subsequent articulation of the reasons that were taken into account at the time the opinion was formed (i.e. contemporaneously with the formulation of the opinion) if those reasons had not been given at the time or were not fully set out at the time. If the initial expression of the reasons was incomplete, then it would be open to the planning authority to fill any gaps in that reasoning by a response to such a request, but not by that process to put forward wholly new reasons that were not in existence at the time of the original decision.
Witness statements: practical points As soon as it is clear that adequacy of opinion being challenged provide / record as much contemporaneous reasoning as possible Worth keeping a subsequent file note of this as basis for future witness statement / other documents? Best approach is to ensure opinion tackles key question from the outset (i.e. reasons for judgment on significance of environmental effects and gives adequate detail as to why conclusion reached on specific factors) Will be easier to expand a summary touching on key legal question than contradict/suggest factors taken into account when no evidence that they were
Discretion not to quash? Principle from Walton : touchstone is whether applicant has in practice been able to enjoy the rights conferred by EC legislation Recent examples: Davies v Camarthenshire CC Hughes v South Lakeland DC Gerber v Wiltshire Key question: would conclusion of opinion necessarily have been negative is that clear cut?
Over to you: 4 imperfect screening opinions 2 were quashed 1 was upheld, 1 was found unlawful but not quashed Identify which was which
Screening opinion 1: quashed or upheld? Additional indicative criteria states: EIA is more likely to be required for commercial development of five or more turbines; or more than 5 MW of generating capacity. Consideration has been given by the Local Planning Authority to the relevant selection criteria in Schedule 3 to the Regulations, the general guidance contained in EIA Circular 11/99, and any indicative criteria in Annex A of the Circular and in the case of the Schedule 2 development, whether it is a sensitive area under Regulation 2(1). Having regard to the guidance given in the Regulations and the Circular, the proposed development would not give rise to significant effects in this instance.
Screening opinion 2: quashed or upheld? Screening exercise relating to the requirement of EIA for a Single Wind Turbine at Mwche Farm Wind turbines are not within Schedule 1 of the regulations, so it is up to the discretion of the Local Planning Authority as to whether EIA is required. In respect of wind turbines, Schedule 2 Category 3 (1) of the EIA Regulations 1999 apply. This states that an EIA may be required when more than two turbines are proposed or whether hub height exceeds 15 metres. In this case one turbine is proposed with a tip height of 44.5 metres. Whilst within a special landscape area which is a local designation, the site is outside the estuary SSSI and SAC therefore the impact is considered to be no more than local significance. On the basis of the above it is not considered that the requirement of an EIA is applicable.
Screening opinion 3: quashed or upheld? Location of development The site which is agricultural land, is not in an environmentally sensitive geographical area as defined by the Regulations. It is relatively flat agricultural land in open countryside to the north of Broughton Gifford. Even though the solar panels would be situated in an area where there are several settlements and isolated farmhouses, it is not a densely populated area. Although it is noted that the site is partially covered by an archaeological record (SMR), subject to appropriate reports this can be adequately assessed during the course of any planning application. Public Rights of Way run through the application site, but subject to appropriate information any impact can be addressed during the course of any planning application. There are no other known historical, cultural or archaeological designations likely to be harmed by the proposals, although it is noted that the Cotswolds Area of Outstanding Natural Beauty lies 3.7 kilometres to the north-west of the site, to the south-west of the site is the Broughton Gifford Conservation Area and a listed building and to the east is a County Wildlife Site. Again subject to appropriate reports these can be adequately assessed during the course of any planning application.
Screening opinion 3 continued. The Characteristics of the Potential Impact The potential impact and material environmental issues in the proposal, such as the landscape character, heritage assets, archaeology, ecology and health and safety can be adequately dealt with in the normal processing of a planning application which will need to be accompanied by the usual statements, reports and assessments including in this instance but not limited to ecology, archaeology, flood risk and landscape that would be subject of consultation with the necessary bodies.
Screening opinion 4: quashed or upheld? Covering letter read: in my opinion, having taken into account the criteria in Schedule 3..[the Development] would not be likely to have a significant effect on the environment by virtue of factors such as its nature, size or location..the above development would not require the submission of an [EIA]. - Key section read (in full): The development may have some impact on the adjacent residential properties in terms of noise and activity generated from the proposed development. These impacts have to be weighed against the current and potential activities associated with the site under its existing form and uses. An Environmental Noise Assessment, Air Quality Assessment and Ground Investigation Report have been submitted with the application and will be used to assess the likely impacts and identify potential mitigation requirements..
Screening opinion 4 cont. The proposal will generate additional traffic movements by both customers and servicing vehicles. The impact and acceptability of this aspect of the proposal will need to be fully assessed by the local Highways Authority and the Highways Agency. A Transport Assessment has been submitted which also includes a travel plan and safety audit to enable these aspect to be assessed. The site is not located within a high flood risk zone, however, a culverted watercourse crosses the car park which may be affected by the proposal, and will need to be assessed by the drainage authorities.
Conclusions Generally, if Court can be satisfied that LPA engaged with relevant question, will be slow to interfere Witness statements if correctly pitched will be permissible and can be a very persuasive tool for the Court. Keep any contemporaneous notes and even subsequent records to assist in future w/s Generally, Court still reluctant to withhold relief unless can be satisfied that it would have made no difference