3 Screening of Development Consent Applications
12.128 Identifying development that falls within Sch 1 is relatively straightforward. Where the subject matter of an application is potentially within Sch 2, however, it may not be immediately apparent whether it will be ‘likely’ to have ‘significant’ effects on the environment and thus require the carrying out of an EIA.
In practical terms, the developer will not know whether or not the submission of an environmental statement will be required with the planning application. The original 1988 regulations made provision for an applicant for development consent to apply for a preliminary ruling as to whether an EIA was required, prior to submitting the application itself. This has now been formalised into a screening procedure under the 2011 regulations. The latter provide that a requirement for the EIA of a planning application can arise in any one of three ways:175(i)The applicant submits an environmental statement for the purposes of the regulations, or
(ii)The local planning authority adopts a ‘screening opinion’ to the effect that an EIA is required, or
(iii)The secretary of state gives a direction that an EIA is required (a ‘screening direction’).
12.129 The screening process allows a potential applicant to ask the local authority to state in writing whether in their opinion the proposed development is within Sch 2, and if so whether it is likely to have a significant effect such that an environmental statement must be submitted with the planning application, and considered alongside other environmental information before planning permission can be granted. These are, in law, two separate issues. Whether a development is a Sch 2 development is a matter of law and will depend upon whether the development comes within the statutory descriptions set out in the schedule.176 There is no role for administrative discretion in this exercise.
The second order decision, however, once it has been decided that a development is within Sch 2, is whether it is also ‘EIA development’, and this depends upon whether in the opinion of the local authority it will have a ‘significant’ effect on the environment. The second order decision involves the application of discretionary judgement by the decision maker, and is therefore subject to the principles of Wednesbury unreasonableness on judicial review.17712.130 The applicant’s request must be accompanied with a plan to identify the land, a brief description of the nature and purpose of the development and of its possible effects on the environment and any additional information that the applicant wishes to bring to the authority’s attention.178 The planning authority have three weeks in which to respond to the request,179 although the parties may agree a longer period for the provision of the screening opinion provided they record their agreement in writing. If the authority issues a screening opinion to the effect that the development is EIA development, and that (therefore) an environmental statement must be submitted, they must give the applicant a written statement to this effect giving their full reasons for coming to the decision.180 After some initial uncertainty on the part of the English courts,181 the Court of Justice of the European Union ruled in Mellor182 ruled that if an interested party so requests, the reasons for the screening determination or copies of the relevant information and documents must be communicated to that party. Third parties, as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was, or was not, necessary.
12.131 Accordingly, the 2011 regulations now require reasons to be given for all screening opinions whether or not EIA is required.
The Regulations require reasons to be given by the Secretary of State or planning authorities when either negative or positive screening directions or opinions are issued. The reasons will be made available to the person who has submitted the planning application and placed on the local planning authority’s planning register so members of the public can inspect them. The reasons given must provide sufficient information to enable anyone interested in the decision to see that proper consideration had been given to the possible environmental effects of the development, and to understand the reasons for the decision.183 It will not suffice simply to give the decision made on screening without supporting reasons explaining or justifying that decision. Similarly, the planning body cannot adopt a negative screening opinion that an EIA is unnecessary for a development on the basis of a communication from the developer which fails to describe possible environmental effects other than in the most general and superficial of terms. This will be the case even if the developer gives assurances that the necessary information will be provided in the future. In order to adopt a negative screening opinion that an EIA is not required, a planning authority must have sufficient information about the project to be able to make an informed judgement as to whether it is – or is not – likely to have a ‘significant impact on the environment’.18412.132 The other second order decision that is required to be made on the screening of planning applications is this: is this project ‘likely’ to have significant effects on the environment? What is meant by ‘likely’ in this context? This requires the planning body to carry out a predictive exercise to weigh the risk of the environmental effects that have been identified actually occurring, and the extent to which (if they do) they will be ‘significant’. This requires a consideration of the precautionary principle, to which the courts have a narrow approach in planning cases.185 In R (on the application of Loader) v Secretary of State it was held that for significant impacts to be held to be ‘likely’ (and require an EIA to be conducted) there must be a ‘real risk’ of environmental impacts of the kind required by the EIA Directive, and not a probability of impact.186 The courts will leave this decision to planning bodies for decision on the merits of each case.
12.133 Where the planning authority require the submission of an environmental statement, or where they fail to respond to a request within the time allowed (three weeks from the date of the application), then the applicant can apply to the secretary of state for a screening direction. The latter must issue his direction within three weeks of the request, or such longer period as he may reasonably require. The secretary of state has power to direct that a particular development is exempt from the requirements of the 2011 regulations and does not require an EIA.187