Arwel Owen, senior associate at David Lock Associates, considers recent experience in seeking secretary of state Environmental Impact Assessment (EIA) screening directions.
It reviews the legislative provisions for requesting a screening direction and considers recent case law in relation to screening directions.
Screening directions can be requested in the following circumstances:
- at the secretary of state’s own volition (article 8(a));
- if requested to by a third party (article 8(b));
- by a person minded to carry out development following the failure of a planning authority to adopt a screening opinion when requested to do so (article 5(7)(a)); or
- by a person minded to carry out development following a decision by a planning authority that the project is EIA development (article 5(7)(b)).
Why seek a screening direction?
The Town and Country Planning (Environmental Impact Assessment) (Amendment) regulations 2015 increased the thresholds at which a development should be screened to determine whether an EIA is necessary to more than 150 homes, or an area greater than five hectares.
Under Planning Practice Guidance , the government has published indicative criteria and thresholds for screening which are intended to help determine whether significant effects are likely . For development projects, the threshold is more than 1,000 homes .
Taken together, the effect of legislation and practice guidance is to significantly increase the threshold at which EIA may be required.
Where a planning authority adopts a screening opinion and decides that a project is EIA development, but the characteristics and scale of the proposal fall below the thresholds given by government, there can be merit in the developer seeking a secretary of state screening direction.
This is exactly the approach David Lock Associates took on behalf of clients on two occasions. In both cases, a screening opinion issued by a local planning authority (LPA) determining that a project is EIA development was overruled by a screening direction issued by the secretary of state.
In November 2011, a proposal for 500 homes and other uses was the subject of a screening request to Ribble Valley Borough Council . The LPA ruled that the project would constitute EIA development, a decision that was informed by the thresholds that were applicable at the time and the scale of the proposed development. A request for a screening direction was made to the secretary of state, who determined that the proposal was not EIA development.
In September 2015, a proposal for 650 homes and other uses was the subject of a screening request to Central Bedfordshire Council. By then, the 2015 regulations and new practice guidance thresholds had come into force. The LPA concluded that the project would constitute EIA development as it exceeded the thresholds in the regulations and also had potential for cumulative impact.
A request was made to the secretary of state for a screening direction, emphasising that the scale of development was significantly below the indicative thresholds set out in the guidance, and providing a reasoned justification as to why the council’s opinion was flawed. The secretary of state determined that the proposal would not constitute EIA development, citing the guidance.
The effect of a direction made by the secretary of state was tested at the High Court in Roskilly v Cornwall Council . A Review of Minerals Permission application had been granted after the LPA adopted a screening opinion that the development needed to go through EIA, even though there was an outstanding request for a screening direction.
In quashing this permission, Mr Justice Dove found that planning permission could not be granted in the absence of necessary environmental information, in accordance with regulation 3(4) of the EIA regulations.
Conclusions
Changes in regulations and practice guidance provide increased scope for projects to fall below the threshold at which an EIA may be necessary. Where planning authorities conclude that a project comprises EIA development, practice demonstrates that seeking a secretary of state screening direction may result in a different conclusion due to the revised regulatory thresholds, and to the indicative thresholds and criteria set out in guidance.
Case law provides that a screening direction is determinative, and reminds planning authorities and other decision makers to exercise caution in determining planning applications where a request for a secretary of state screening direction is outstanding.
