If there is any aspect of EIA that keeps lawyers busy, it is EIA Screening. Although making an application for a Screening Opinion is a straightforward process, there are potential ‘elephant traps’ along the route. They are commonly simple procedural matters, but there are instances where evidence supporting the Screening Opinion may be considered ‘unreasonable’ or unsound. The best way to minimise risks is by careful preparation of the Screening Request and then close scrutiny of the Screening Opinion.
EIA Screening – The process
The process of Environmental Impact Assessment (EIA) Screening, which identifies whether an EIA is needed to help the permitting authority to decide whether a development can be consented, is laid out in the UK EIA Regulations. The process first identifies if the proposed project falls within Schedule 1, for which EIA is mandatory. If instead it falls within Schedule 2, which is most often the case, the planning authority must decide whether the project is likely to have significant effects on the environment by virtue of its nature, size and location. Based on that decision, it will reach its Opinion on whether an EIA is required.
Whether a development falls within the classes in Schedules 1 or 2 is regarded by the Courts as a question of law. It is not a judgement to be made by the local planning authority. When considering Schedule 2 projects, however, the Courts uphold that the test to be applied is whether the project is ‘likely to have significant effects on the environment’.
The need for an EIA of projects with potential significant effects on national resources is relatively straightforward – if such effects are likely on national or internationally designated assets then an EIA will almost certainly be required to inform the consenting process. The majority of projects don’t significantly affect national assets, however, and the decision to be made is whether they need an EIA, or are more appropriately dealt with by a ‘standard’ planning application.
Significant Effects on the environment
The Courts tend to adopt a “hands off” approach to the question of whether environmental effects are significant. This is deemed to be a judgement best informed by detailed knowledge of the locality where the proposed development consent is sought, as held by a local authority. The criteria to be applied in making this test are set out in the Regulations, and the decision maker must have regard to the precautionary principle and to the degree of uncertainty of effects when reaching its decision.
Only if the consenting authority makes a marked error of assessment process or demonstrates unreasonableness will the Courts intervene. Decisions, if soundly based, will therefore be successfully reviewed only if the planning authority has gone beyond what constitutes reasonable judgement. This is a high hurdle for those seeking to get the Courts to intervene in the decisions of local authorities.
Minor environmental effects do not bring a development within the scope of the EIA regime. If effects are likely to be significant, however, an EIA may be required regardless of whether these impacts will be experienced locally or nationally.
Recent Case Law has clarified this point:
(on the application of Davies) v Carmarthenshire CC  EWHC 230 (Admin)
The challenge related to a negative screening opinion issued for a proposed single wind turbine, to be located on the shores of an Estuary, opposite two Listed Buildings – a boat house and writing shed which had been occupied by the poet, Dylan Thomas.
The Council’s Screening Opinion stated that whilst the proposed turbine was located within a Special Landscape Area (a local designation), it was outside the nationally and internationally designated Estuary (a SSSI and SAC) and therefore the impact was considered to be of no more than local significance. The Council determined that an EIA was not required.
Some months later the officer’s report to the planning committee recommended refusal on the basis that adverse impact on the character and appearance of the open countryside, combined with impact on cultural heritage (not cited in the Screening Opinion), would outweigh any benefit in terms of renewable energy generation.
The application was approved at Committee, against the officer’s recommendation, on the basis that unacceptable impact had not been proven.
Legal challenge was made that the argument in the screening opinion was irrational, inadequately reasoned and failed to acknowledge the cultural and historical significance of the landscape.
Gilbart J took the view that:
- There had been conflation of the matters of the importance of the resource to be affected (and the range of those effects) with the question of significance; and
- There was also no consideration of relevant heritage matters in the Screening Opinion. Even if matters are considered to be insignificant (as the officer considered in this instance), the Screening Opinion must address the issues properly, even if in brief.
In essence, in determining whether an impact is significant it is reasonable to consider the size of the area to be affected i.e. whether it is small, locally, or nationally important. Concluding that only a local area, or an area of local importance, will be affected does not mean that the effect is not significant within the context of the Regulations. If effects are significant, they cannot be considered to be insignificant (in the meaning of the Regulations) just because they are experienced only locally. The outcome of this case was the quashing of the planning permission for the turbine.
Because EIAs can be a costly process and affect the project programme, it can be tempting for developers and their agents to try to ‘steer’ Screening Opinions to avoid need for an EIA. Equally, as part of its drive to streamline the planning process, the Government is sending the message to planning authorities that the EIA Regulations are being ‘over applied’. As such, it can be appealing for both sides to avoid an EIA where possible.
This tendency is reinforced by a number of recent appeal decisions on non- EIA applications, in which the decisions around local effects (including landscape, heritage and ecology matter) are mixed. It may seem that the chances of achieving planning permission are fair and therefore worth the risk and cost of an appeal.
EIA applications are, however, a different animal. Significant effects in the context of the EIA Regulations must be considered in their own right, with less emphasis on the planning balance that forms the basis of decisions at appeal. Furthermore, any developer who has secured a negative EIA Screening Opinion risks the subsequent consent being vulnerable to a legal challenge if a Screening Direction from the Secretary of State is sought by a third party. While the EIA Regulations do not require a planning authority to wait for a Screening Direction before reaching a decision, any permission granted prior to a Screening Direction is at risk, at least of delay, if the Direction reaches a different conclusion to the Opinion (as the recent case of Roskilly v Cornwall Council demonstrated in December 2015).
EIA Screening, whilst straightforward in many cases, can be a minefield. A flawed ‘negative option’ will bring increased risk of legal challenge, with greater cost and delay to a project, than a carefully scoped EIA.
The key message is this. When preparing an EIA Screening request ensure that sufficient information is provided about the proposed development to allow the planning authority to make a sound decision. When a Screening Opinion is received, check it carefully to avoid the ‘elephant traps’ and, if a negative Opinion is received, ensure that the reasons for this decision are clearly laid out and are reasonable. Although challenging a planning authority on a negative screening opinion may appear counter-productive, it is the best way to clarify the correct approach during the early stages of the planning process, thereby saving significant risks, costs and delays later down the line.