« Previous | Contents | Next »
Listen
INTRODUCTION
1. This consultation paper sets out the Scottish Executive's proposals for amending the Environmental Impact Assessment (Scotland) Regulations 1999 ('the 1999 Regulations') as amended to transpose into Scots law the requirement that consideration must be given to the need for Environmental Impact Assessment ( EIA) before determining a planning application for approval of reserved matters.
2. Following two related rulings from the European Court of Justice ('the ECJ') on cases C-290/03 ( R v London Borough of Bromley, ex parte Barker) and C-508/03 (Commission v UK), the Executive issued interim guidance to planning authorities in July 2006 2. The interim guidance advised that planning authorities must satisfy themselves that they have met the requirements of the EIA Directive and ECJ judgements when considering outline planning applications and the subsequent approval of reserved matters applications, even though this is not at present required by the 1999 Regulations. This consultation paper now seeks views on the Executive's proposals for transposing this requirement into Scots law.
Background
The EIA Directive
3. Directive 85/337/EEC as amended, (known as the ' EIA Directive') requires an assessment of the effects of certain public and private projects on the environment before development consent is granted. The main aim of the Directive is to ensure that the authority giving the primary consent for a particular project to proceed makes its decision in the full knowledge of any likely significant effects on the environment. The Directive therefore sets out a procedure that must be followed for certain types of project before this consent can be given. This procedure - known as Environmental Impact Assessment ( EIA) - is a means of drawing together, in a systematic way, an assessment of a project's likely significant environmental effects. It helps to ensure that the importance of the predicted effects, and the scope for reducing them, are properly understood by the public and the relevant competent authority before it makes its decision. Article 1(2) of the Directive defines 'development consent' as ' the decision of the competent authority or authorities which entitles the developer to proceed with the project'.
The ECJ Rulings
4. Case C-290/03 ('the Barker Case') concerned an outline planning permission (' OPP') to develop a leisure complex in Crystal Palace Park granted by the London Borough of Bromley as the Local Planning Authority. At the time of the grant of OPP, the local planning authority determined that an EIA was not required. When, subsequently an application for the approval of reserved matters was submitted, there were calls for an EIA to be carried out. However, as a matter of domestic law it was considered that an EIA could only be required at the initial OPP stage, and the approval of reserved matters was granted without an EIA.
5. Ms Barker brought judicial review proceedings culminating in referral to the House of Lords who sought a preliminary ruling from the ECJ. Pending the preliminary ruling, the House of Lords stayed its decision on the Barker Case.
6. Case C-508/03 ('Commission v UK') involved infraction proceedings brought by the EC Commission against the UK arising out of two EIA - related matters:-
i. the Barker Case; and
ii. a grant of OPP and the subsequent approval of reserved matters by the London Borough of Hammersmith & Fulham in 1996 for the development of retail and leisure facilities at White City.
7. The two cases were considered together by the ECJ.
8. The ECJ ruled on 4 May 2006 that OPP and the decision that subsequently gives approval of reserved matters must now be considered to constitute a multi-stage development consent within the meaning of Article 1(2) of the EIA Directive. The effect of this ruling is to require that consideration must be given to the need for EIA before determining a planning application for approval of reserved matters. In some circumstances where an EIA was not carried out at the outline stage an EIA may subsequently be required before an application for approval of reserved matters can be determined. Where EIA was previously carried out, planning authorities or the Scottish Ministers as the case may be must now consider whether the Environmental Statement ( ES) needs revising or updating before a reserved matters application can be determined and must call for further information to be provided where necessary.
9. Full text of the ECJ rulings can be accessed online at http://curia.europa.eu/en/content/juris/index.htm
The House of Lords judgement
10. Following the ECJ judgement on the Barker Case the House of Lords ruled on 6 December 2006 in the case of London Borough of Bromley ex parte Barker. That ruling is helpful in giving further clarification as to the circumstances in which EIA may be required at the reserved matters stage. The House of Lords stated that:-
- In the case of a Schedule 2 development the competent authority must decide at the outset whether an EIA is needed. An application for OPP should be accompanied by sufficient information to enable that question to be answered and an EIA, if needed, is to be obtained and considered before the OPP is granted. The need for an EIA at the reserved matters stage will depend on the extent to which the environmental effects have been identified at the earlier stage.
- If sufficient information is given at the outset it ought to be possible for the authority to determine whether the EIA obtained at that stage will take account of all potential environmental effects likely to follow as consideration of an application proceeds through the multi-stage process. Conditions designed to ensure the project remains within the scope of that assessment will minimise the risk that those effects will not be identifiable until the stage when approval is sought for reserved matters. In such cases it will normally be possible for the authority to treat the EIA at the outline stage as sufficient for the purposes of granting a multi stage consent.
- The competent authority may nevertheless be obliged in some circumstances to carry out EIA even after OPP has been granted. This is because it is not possible to eliminate entirely the possibility that it will not become apparent until a later stage in the multi stage consent process that the project is likely to have significant effects on the environment. In that event account will have to be taken of all the aspects of the project which have not yet been assessed or which have been identified for the first time as requiring assessment.
EIA and Outline Planning Permission
11. The effect of these judgements is not to require the removal of the concept of OPP, but to ensure EIA is carried out at the implementing stage (reserved matters approval) in the circumstances outlined above. The effects which a project may have on the environment must, therefore, continue to be identified and assessed at the time of the procedure relating to the grant of OPP and in this respect the Executive considers that Q&A advice issued following the Tew and Milne judgements in the English Courts continues to be of relevance. John Gunstone's letter of June 2002 to Heads of Planning refers 3 and should be read in light of this paper and of the interim advice of July 2006.
12. On 30 March 2007 the Scottish Executive issued its proposals for updating Circular 15/1999; the Environmental Impact Assessment (Scotland) Regulations 1999. We aim to issue a report on that consultation process by Autumn 2007, and a revised Circular thereafter. It is our intention that the revised Circular will include updated guidance on OPP, reserved matters and EIA which will reflect the finalised terms of amendments to the 1999 Regulations in this respect. The Executive will also give consideration as to whether any supplementary guidance would be beneficial at that time.
Modernising the Planning System - future changes
13. The Planning etc. (Scotland) Act 2006 received Royal Assent in December 2006, representing an important step in delivering the Executive's commitment to reform the planning system. Further details of the modernisation agenda, including the proposed timetable for commencing relevant sections of the Act, can be viewed online via the Scottish Executive's planning webpages at www.scotland.gov.uk/Topics/Planning/Modernising.
14. As part of that package of reform the Scottish Executive has proposed changes to OPP which it intends to replace with a system whereby applications may be made for 'planning permission in principle' with provision for new procedures for the subsequent approval of conditions. It is the Executive's intention to set out further details of its proposals, including transitional arrangements, later in the year. Those proposals will take into account the requirements of the ECJ rulings in relation to multi-stage applications.
« Previous | Contents | Next »