6 Unauthorised Development
12.157 Unauthorised development that becomes the subject of enforcement action is problematic in terms of applying the EIA procedures required by the EC Directives. Because an appeal against an enforcement notice may lead to the grant of planning permission, the requirement to apply EIA when considering appeals was introduced in 1995.226 This closed a loophole by requiring an EIA to be carried out where a project considered on appeal falls within Sch 1 or (if likely to cause significant effects on the environment) Sch 2 to the EIA regulations.
The procedures applicable for EIA on planning appeals have now been modified and refined, and are set out in regs 25 and 26 of the 2011 EIA regulations. The Secretary of State is prohibited from granting planning permission in respect of development which is the subject of an enforcement notice unless he has fist taken into account environmental information, an must state in his decision that he has done so. The 2011 regulations also apply the screening process to the procedures for issuing enforcement notices and appeals there from:(i)The local authority must adopt a screening opinion before serving the enforcement notice where they consider that the matter, which is a breach of planning control, constitutes Sch 1 or 2 developments potentially requiring EIA. The screening opinion must be served with a copy of the enforcement notice, together with a reg 25 notice requiring the developer, if he intends to appeal, to serve on the Secretary of State four copies of an environmental statement relating to the EIA development in issue.
(ii)The developer can, having received a reg 25 notice, apply to the Secretary of State for a screening direction. The Secretary of State also has power to make a screening direction in any other case where a planning appeal is made to him where it appears to him that the unauthorised development concerned was Sch 1 or 2 development requiring EIA.