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Environmental Impact Assessment Directive: Questions and Answers

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Planning Directorate
Planning Modernisation and Co-ordination Division
T: 0131-244 1476 F: 0131-244 7083
E: cara.davidson@scotland.gsi.gov.uk

Heads of Planning

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22 November 2007

Dear Sir / Madam

ENVIRONMENTAL IMPACT ASSESSMENT DIRECTIVE: QUESTIONS AND ANSWERS

Introduction

Although this European Directive on the assessment of the effects of certain public and private projects on the environment (known as the Environmental Impact Assessment or 'the EIA Directive') has now been in force for many years, some planning authorities may still have had limited practical experience of it. This note, in the form of answers to frequently asked questions, offers a brief and basic introduction to the Directive, the Regulations and planning authority responsibilities. It also updates and replaces the letter to Heads of Planning previously issued in 2002 1. It does not offer definitive guidance and is not a substitute for the Regulations or for guidance published in the official Scottish Government Planning Circular (Circular 8/2007: The Environmental Impact Assessment (Scotland) Regulations 1999 2), nor the advice in Planning Advice Note 58: Environmental Impact Assessment 3.

You need to be familiar with these official documents and refer to them when dealing with applications where EIA is involved. This note may provide a useful aide-memoire to remind you of some of the procedures to be followed and the potential pitfalls in cases involving EIA. Since the EIA Directive first came into effect in 1988, interpretation of the Directive and the implementing regulations have been aided by a series of court decisions. This note also includes references to certain of these cases These cases have important implications for the way in which planning authorities exercise their responsibilities. Whilst these are English Court cases, given the similarity of the regulations north and south of the border they are of some relevance to the operation of the EIA Regulations in Scotland.

Background

In the UK, environmental issues have long been taken into account during the planning process. Practice, however, varied throughout the European Community. Member States agreed in 1985 that procedures should be harmonised so that environmental issues were addressed in a more rigorous, scientific and transparent manner. In 1988 the European Directive on the effects of certain public and private projects on the environment came into effect. The Directive, referred to as the EIA Directive, was amended in 1997, and subsequently in 2003. The consolidated text of the directive is available on the Scottish Executive website at www.scotland.gov.uk/Publications/2005/05/12110513/05243.

For projects that are subject to approval through the planning system the requirements of the Directive have been transposed into domestic legislation by the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 1999 ( SSI 1999 No 1) ("the Regulations"). These regulations have subsequently been amended. A copy of these Regulations and subsequent amending legislation is available at; www.opsi.gov.uk/legislation/scotland/s-stat.htm

What do the Regulations require?

For qualifying projects they require a planning authority to consider, whether a proposed project is likely to have a significant effect on the environment. If so, the planning authority must ensure that the applicant carries out an assessment and prepares and submits to the planning authority a report that identifies, describes and assesses those significant effects that the project is likely to have on the environment. The process is referred to as Environmental Impact Assessment ( EIA), the report as the Environmental Statement ( ES).

Members of the public, and statutory consultees, must be given the opportunity to comment on the ES. Before any decision to approve the application may be taken, the planning authority must take into account the ES and any representations made about the environmental effects by the public or statutory consultees, and the planning authorities must state in their decision that they have done so.

Do the Regulations apply to all applications for planning permission?

No. In the main they apply to large-scale developments where there is obvious potential for environment damage. The size of a project is not, however, the only criterion. The key issue to be considered is whether a project is likely to have a significant effect on the environment. Small-scale projects in or close to sensitive areas can have effects just as damaging as those from large-scale projects.

There are two classes of project. Schedule 1 of the EIA Regulations lists those for which EIA is mandatory. Schedule 2 lists those where the planning authority is required to consider whether the project is likely to have a significant effect on the environment. Where this is the case, EIA must also be carried out. There is no discretion not to require EIA simply because other information about the project is available from other sources.

What do the lists in Schedules 1 and 2 cover?

Caution needs to be exercised about the lists of projects.

In legal proceedings, domestic Courts must take account of judgments of the European Court of Justice ( ECJ). So far as the EIA Directive is concerned the ECJ has consistently held that in its application it is to be interpreted as having a "wide scope and broad purpose " (Kraaijveld (Dutch Dykes) Case C-72/95). This has implications for planning authorities when they are screening for EIA.

The fact that a particular type of project is not listed specifically within one of the categories of projects in the Directive or the EIA Regulations does not mean that it is not caught. The categories of projects are illustrative, not exhaustive. They should be read in a purposive manner to include similar types of project. Particular care is needed when considering development that could fall within the categories of "industrial estate development" and "urban development projects" listed under 'Infrastructure' projects (Schedule 2.10 projects).

A recent example of how the 'wide scope and broad purpose' has been applied in England and Wales is found in the Court of Appeal judgment relating to a planning proposal by the Big Yellow Property Company Ltd to construct a storage and distribution facility (Goodman and another v Lewisham London Borough Council [ TLR 21/2/03]) The planning authority took the view that as such development was not specifically described in either the Directive or Regulations, there was no need to consider EIA.

Following legal challenge, the Court of Appeal decided that

"in this instance "infrastructure" goes wider, indeed far wider, than the normal understanding, as quoted from the Shorter English Dictionary, of "the installations and services (power stations, sewers, roads, housing etc) regarded as the economic foundations of a country". It held that the decision that the development was outside the reach of Schedule 2.10(b) of the EIA Regulations was outside the range of reasonableness that was open to the planning authority. The planning permission was quashed and the application remitted to the planning authority for reconsideration. As can be seen from the Goodman Case, particular care may be needed when considering development that could fall within the categories of "industrial estate development" and "urban development projects" listed under "infrastructure" projects in Schedule 2.10.

What are the lessons of these cases?

The messages are clear.

First, the Directive is not open to narrow interpretation. The UK Courts will interpret the Directive in the European sense - i.e. as having wide scope and broad purpose.

Second, do not assume a project is excluded simply because it is not expressly mentioned in either the Directive or the Regulations. For example, neither the Directive nor the EIA Regulations refer specifically to "housing development". It would be a mistake to consider that housing development does not fall within the ambit of "urban development projects". Moreover, projects can be described in different ways so it's important to consider carefully the scope and purpose of the project - not just its label. As an illustration, a proposal to create a new "Employment and Enterprise Opportunity Facility" may simply be another way of describing an industrial estate development.

Third, if in doubt about whether EIA is required, seek legal advice.

Where EIA is required, what information has to be included in the Environmental Statement?

The ES has to address the direct and indirect effects of the development on a number of factors including the population, fauna, flora, soil, air, water, climatic factors, landscape and archaeology. Where alternatives have been considered - e.g. alternative locations or different ways of executing the projects - these should be reported in the ES. Details of any measures proposed by way of mitigation should be included in the ES. Planning authorities may wish to ensure that these are expressed so that it is clear what is to be done and by when, and in a way that facilitates the drafting of planning conditions that will enforce the mitigation measures.

The ES must also contain a non-technical summary so that lay persons can understand what is being proposed and its likely effects.

Full detail of the information that has to be included is listed in Schedule 4 of the Regulations.

Is there a standard format for an ES?

There is no prescribed format or recommended length. The key issue is that it contains the relevant environmental information specified in Schedule 4 of the EIA Regulations. It may comprise more than one document but in this case it will be helpful if the status of each and its relationship to the others is clearly explained.

In the case of Berkeley v SSETR (2000) [ WLR21/7/2000 p420], the House of Lords commented that an ES must not be a paper chase. Lord Hoffman said, "the point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language."

What action does the planning authority have to take?

The planning authority's roles involve

  • "screening" to determine whether a project requires EIA;
  • "scoping" to advise the applicant of the likely, significant effects on the environment that it wants to see addressed in the ES;
  • consulting with statutory consultees, members of the public and others who may have views to establish their view on the proposal and the ES; ,
  • evaluating the environmental information presented in the ES and any representations made before making a decision; and,
  • publicising the decision.

Screening

Screening is the process of deciding which projects require EIA.

An applicant for planning permission may ask the planning authority for a "screening opinion" before submitting the application. If it receives such a request, the authority has to issue an opinion within 3 weeks of the date of receipt. The Regulations do allow extensions to the 3 week period provided they are agreed in writing with the applicant. If you believe you will be unable to issue a screening opinion within the 3 week timescale you should seek agreement with the applicant to extend it so that you can allow for necessary consultation and issue of a thorough, considered opinion.

If no extension is agreed, and a screening opinion has not been issued with the 3 week period the applicant may ask the Scottish Ministers to issue a screening direction.

Where a planning application is submitted without an ES, and a screening opinion or screening direction has not previously been issued, the planning authority must determine whether the application falls within a class of development listed in either Schedule 1 or 2 of the Regulations and, for any that fall within Schedule 2, whether the project will have a significant effect on the environment. Again a period of 3 weeks is allowed from the date the application is received unless a longer period has been agreed.

A copy of the screening opinion/screening direction has to be made available for public inspection at all reasonable hours at the place where the planning register is kept. A copy of the screening opinion should be retained for 2 years.

Who has to carry out the screening opinion?

Normally the officer dealing with the planning application will be responsible for the screening opinion. The decision is taken on behalf of the planning authority. If the decision is to be made by officers, it is important to ensure that they have delegated authority to do so before they make the decision. Failure to comply with such basic administrative rules will leave subsequent planning decisions open to successful legal challenge.

In R v St Edmundsbury Borough Council, ex parte Walton [1999 Env LR 879] a decision of the planning authority to grant planning permission was overturned because a decision not to require EIA was taken by an officer who had no formal delegation. Nor can it be assumed that the planning decision can be saved by an exercise of the Court's discretion based on reconsideration of the screening decision taken after judicial review proceedings are initiated. A note of caution in respect of such reconsideration was given by the court in Regina oao Carlton-Conway v Harrow LBC [ TLR 11/7/2002]

What factors are taken into consideration when making a screening opinion?

Given their nature and scale, Schedule 1 projects should be easily identified and it is unlikely that an applicant for such a project would submit a proposal without an EIA. If not, it should be a fairly straightforward matter to decide whether or not EIA is required.

For projects within a category of development listed in Schedule 2 a screening opinion has to be made if the project meets or exceeds the thresholds and criteria listed in column 2 of the Table at Schedule 2.Schedule 3 of the Regulations lists factors that have to be taken into account when determining whether these projects are likely to have significant environmental effects.

Projects that fall below the thresholds and criteria in Column 2 of the Table at Schedule 2 do not generally require EIA and the planning authority need not adopt a screening opinion. There are exceptions to this as follows:-

  • where the proposed project falls in or partly within a sensitive area as defined in Regulation 2(1); or,
  • where the Scottish Ministers have exercised powers under Regulation 4(8) to direct that EIA is required even though it does not meet these thresholds and criteria. Such a direction will usually be in response to a request by the planning authority.

Is it necessary to have full knowledge of the environmental effects before making a screening decision on whether EIA is needed?

The EIA Directive requires that decisions on whether to grant development consent for specific projects are taken in the full knowledge of the project's likely significant impact on the environment. It also requires a determination to be made of which projects should be made subject to assessment. There is a two stage process - first, deciding whether EIA is required; and second, where it is required, of providing the environmental information.

At the 1st stage, the responsibility is to consider whether the project is likely to have a significant effect on the environment. This calls for the exercise of professional judgment taking into account factors such as nature, scale and location of the project (see Schedule 3 of the EIA Regulations), knowledge of the local area and its environment and evaluation of such information as it is reasonable to expect the applicant to provide at this stage. The amount of information necessary at this stage however, does not mean you need to have "full knowledge" of every environmental effect.

Only if it is decided that EIA is required, will full and detailed knowledge of the project's likely significant effects be required.

A helpful judgment in this respect is that of Regina oao Jones v Mansfield DC (2003 Env L. R 26) where the judge stated that "in general a lesser degree of information would be needed at the stage of deciding whether EIA is required at all, than at the 2nd stage of providing the environmental information where an EIA was required. He commented that

"it is for the authority to judge whether a development would be likely to have significant environmental effects. The authority must make an informed judgment, on the basis of the information available to it and having regard to any gaps in that information and to any uncertainties that may exist, as to the likelihood of significant effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends upon the circumstances of the individual case."

The judgment also noted that

"Whether sufficient information is available to enable a judgment to be made as to the likelihood of significant environmental effects is a matter for the authority, subject to review by the court on Wednesbury principles".

Does the screening opinion have to give reasons for the decision?

Where an EIA is required, the planning authority must provide a written statement giving full reasons for its decision. There is no similar requirement where the authority decides that EIA is not required, but equally there is no bar on it from providing reasons if it wishes to do so. Regardless of whether you decide to give reasons for a decision that EIA is not required it would be prudent for the planning authority to make and retain for its own use a clear record of all of the issues considered and the reasons for its decision. This will be very useful in the event of any challenge to the planning decision based on refusal to require EIA.

Can a screening opinion still be issued outside of the 3-week timescale?

To avoid unnecessary delays it's important that every attempt should be made to issue screening opinions within the statutory 3-week period. The regulations do, however, allow for the authority and the applicant to agree a longer period. Where it is considered unlikely you will be unable to issue a screening opinion within the statutory timescale you should, as early as possible, seek agreement with the applicant to extend it. Such requests should be the exception rather than the rule. Unless there is such agreement, the authority has no legal authority to request an EIA beyond the 3-week period.

If the authority had not issued a screening opinion and it considered that EIA was required, it could seek to persuade the applicant voluntarily to carry out an assessment and provide an ES which would be submitted in accordance with the Regulations. If the applicant was unwilling, the authority can also request the Scottish Ministers to issue a screening direction to determine whether EIA is required.

Can the authority change its screening opinion?

There may, exceptionally, be cases where a screening opinion has been issued but it subsequently becomes evident that it needs to be changed. This is most likely to be after a negative screening opinion has been issued and new evidence comes to light. If that evidence indicates that EIA is required, the planning authority must not ignore it, but could seek to persuade the applicant to voluntarily carry out an assessment and to submit an ES in accordance with the Regulations (see paragraphs 59-61). Alternatively, it may ask Scottish Ministers to issue a screening direction. A direction by Scottish Ministers, whether it agrees or disagrees with the authority's screening opinion, is determinative.

This was addressed in the case of Fernback and Others v Harrow LBC [ TLR 15/5/2001]). In this case the Court held that on the one hand a "negative" screening opinion issued by a planning authority did not determine whether an application for planning permission was " EIA Development" and a "positive" one by the planning authority was determinative only in the absence of one by the Secretary of State. On the other hand, an opinion by the Secretary of State, either way, is determinative. In Scotland the role of the Secretary of State would of course be taken by the Scottish Ministers.

Scoping

Scoping is about setting out the issues to be considered in the ES, the parameters and the broad approach that is to be taken during the assessment. - in effect the important environmental issues.

Applicants for planning permission may request the planning authority to provide a "scoping opinion" on the impacts and issues that the EIA should address - i.e. those impacts that are likely to be significant. The statutory process requires discussion between the authority, applicant and the consultation bodies and a scoping opinion to be issued within 5 weeks of the request or such longer period as may be agreed.

The Regulations require the planning authority to issue a scoping opinion only in cases where the application has not yet been submitted. Planning authorities are, however, encouraged to respond favourably to any request from the applicant for a scoping opinion. They may also wish to consider whether they should extend consultations to involve the public and other interested bodies.

Once a scoping opinion is issued can I request further information?

A scoping opinion that is discussed and agreed by all interested parties at the outset should ensure that the relevant issues and potential impacts are identified and reported in the ES. Provided the EIA is properly carried out as agreed in the scoping opinion this should minimise the need to request further information. However, if it believes that further information is necessary the planning authority is able to request it under Regulation 19.

It is important to stress that the planning authority must obtain all the information it needs to assess and evaluate the likely significant environmental effects of the proposal before it reaches its decision. It cannot adopt a "wait and see" approach or impose a condition requesting further work to identify the likely environmental effects after permission has been granted. It must be sure that all of these have been identified and taken into account before granting planning permission.

R v Cornwall County Council ex parte Jill Hardy [2001 JPL 786] refers to a case in which the applicant carried out an EIA and provided an ES. Although it was known that the conditions at the site were those favoured by a protected species, bats, the applicant did not investigate for their presence as a part of the EIA. The planning authority, advised by English Nature, imposed a condition requiring the applicant to carry out a survey to establish whether bats were present prior to commencing the development. The Court held that this information should have been included in the ES, otherwise the authority could not comply with the EIA Regulations (Regulation 3(2)). The planning permission was quashed.

Does this now mean that conditions cannot be used in cases where the proposed development fall within the scope of the EIA Regulations?

No. They can still be used in the case of EIA development. Planning authorities, however, need to exercise care and judgment to ensure that conditions designed to mitigate the likely effects of a proposed development are not used as a substitute for EIA or to circumvent the requirements of the EIA Directive.

It may be useful to refer to relevant recent case law.

Regina oao Lebus v South Cambridgeshire DC [2003 2 PLR5] involved development for an egg production unit to house 12,000 free range chickens. A local resident had written to the planning authority in 2000 suggesting that EIA was required for this development. After a meeting and discussion with the applicant, the planning officers dealing with the case took the view that this was not EIA development and the applicant was told informally that EIA was not required. The planning officer dealing with the case made no written record of his conclusions. At the meeting the planning officers concluded that the potential adverse impacts of the development would be insignificant with proper conditions and management enforceable under section 106 planning obligations (the Scottish equivalent being a Section 75 agreement). Planning permission was granted subject to conditions in 2002. The resident challenged the decision by judicial review.

The Court allowed the appeal and quashed the planning permission. So far as planning conditions and EIA are concerned it held that "it is not appropriate for a person charged with making a screening opinion to start from the premise that although there may be significant impacts, these can be reduced to insignificance by the application of conditions of various kinds. The appropriate course in such a case is to require an environmental statement setting out the significant impacts and the measures which it is said will reduce their significance".

The message from Lebus is that where proposed development is EIA development the use of conditions cannot be used to substitute for the proper assessment procedure. To do so would simply negate the purposes of the Directive. It is also clear from this case that planning authority staff need to make and record formal screening opinions on Schedule 2 applications.

The question of planning conditions was also considered in Gillespie v First Secretary of State and Bellway Urban Renewal ( TLR 7/4/2003] . In this case the First Secretary of State granted planning permission for a housing development on the site of a former gas works. One of the former gasholders was still in situ. Soil surveys on the site had been carried out and revealed contamination but the type and extent was not fully known, particularly of that below the gasholder. The First Secretary of State, however, considered that there was no need for an EIA. He approved the development subject to conditions to carry out a detailed site examination to establish the nature, extent and degree of the site contamination and to remediate it prior to commencement of the development. The remediation strategy would rely upon tried and tested methods so there was no reasons to assume they would be unsuccessful in removing the contamination.

The Court of Appeal held that in considering whether an environmental impact assessment was required before planning permission could be granted the Secretary of State did not have to ignore proposed remediation measures but could not assume that in a case of any complexity they would be successfully implemented.

The extent to which such measures could be taken into account in screening decisions would depend on the facts of each individual development having regard to;

  • The extent of the investigation, up to the time of the decision, into the impact of the development and environmental problems arising from it
  • The nature of the proposed remedial measures
  • The extent to which those have been particularised
  • Their complexity
  • The prospects of their successful implementation
  • The prospect of adverse environmental effects in the course of the development, even if of a temporary nature
  • The final effect of the development

Lessons from Gillespie

Remediation measures need not be ignored when making decisions about the likely significant effects of proposed development. Care and judgment, however, has to be exercised. Remedial measures that are well-established and uncontroversial, e.g. cleaning wheels of trucks and covering loads in lorries to minimise dust etc. may well be taken into account. In more complex projects, and/or where the nature of the proposed remediation measures is likely to be more complex and possibly less clearly established, it may be less appropriate to take the proposed measures into account. It is important that the offer of remediation measures is not used to frustrate the purpose of the EIA Directive or serve as surrogate for it.

If there is any doubt you should seek legal advice and refer lawyers to these cases.

Do applications to vary planning permission by removing previously attached conditions fall within the scope of the Directive?

Yes. An application made under s73 of the Town and Country Planning Act (the Scottish equivalent being Section 42 of the Town and Country Planning (Scotland) Act) to vary conditions previously attached is in effect an application for a new planning permission. The planning authority therefore has to consider the need for EIA in exactly the same way as any other application.

Consultation; who has to be consulted, and when?

Scoping opinion - the Regulations require a planning authority to consult with specified statutory consultees prior to issuing any scoping opinion

ES and its associated planning application - the planning authority must also give statutory consultees and members of the public an opportunity to comment on any ES and its associated planning application and it must take any relevant views expressed by them into account in reaching its decisions.

Screening opinions - there is no requirement to consult either statutory consultees or the public about these.

Do special provisions apply in advertising development subject to EIA?

Where an ES is submitted, the planning authority has to advertise the fact in a local newspaper (and in the Edinburgh Gazette) and specify where the application and ES may be inspected for a period of 28 days during which time representations can be submitted to the planning authority. The applicant is responsible for the payment of fees relating to the advertising of the application in the newspaper. Regulation 13 and Schedule 5 of the regulations also carry certain obligations on the part of the applicant to notify any parties holding a notifiable interest in neighbouring land.

Do the regulations specify how 'confidential' environmental information should be treated?

Under the Environmental Information (Scotland) Regulations 2004, Scottish public authorities must make environmental information available to any person who requests it. Regulation 12 of the EIA Regulations supplements these provisions in cases where a developer is preparing an ES. Whilst there is no obligation to make available information which is capable of being treated as confidential under the Environmental Information Regulations, the decision to withhold particular information - for example by placing the material in a confidential annex to the ES - must be carefully considered under the terms of the 2004 Regulations. Further information and guidance on these regulations is available at www.scotland.gov.uk/Publications.

Does further information requested under Regulation 19 also have to be advertised?

Yes. The authority will have to advertise in the manner set out in Regulation 19, using Schedule 6 of the Regulations. Any other information of a substantive nature relating to the environmental statement which is supplied by the applicant or appellant must also be advertised, with certain exceptions relating to information provided for the purposes of an inquiry or an appeal.

Evaluating the Environmental Statement

The planning authority is responsible for evaluating the ES to ensure it addresses all of the relevant environmental issues and that the information is presented accurately, clearly and systematically. It should be prepared to challenge the findings of the ES if it believes they are not adequately supported by scientific evidence. If it believes that key issues are not fully addressed, or not addressed at all, it must request further information. The authority has to ensure that it has in its possession all relevant environmental information about the likely significant environmental effects of the project before it makes its decision whether to grant planning permission.

Does this also apply to applications for outline planning permission where some matters may be reserved for later determination?

The European Court of Justice has ruled in cases C-290/03 (R v London Borough of Bromley, ex parte Barker) and C-508/03 (Commission v UK) that outline planning permission (' 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 these rulings is to require that consideration must now be given to the need for EIA before determining a planning application for approval of reserved matters. Amendments to the Regulations made in 2007 4 transposed this requirement into Scots law. However, in relation to OPP, there is no change to the requirement that the provisions of the Regulations must be met in full at outline stage.

Now that EIA may subsequently be required at reserved matters stage, why is it important to meet EIA provisions fully at outline stage?

It is possible that an EIA carried out (or supplemented or updated) at reserved matters stage could identify for the first time significant effects on the environment associated with the project as a whole in respect of which OPP has already been granted. However, the Scottish Ministers consider that, where certain precautions are taken at outline stage, it ought normally to be possible for the authority to treat the EIA at outline stage as sufficient for the purposes of granting a multi stage consent. In this way authorities can seek to minimise the risk that new environmental information comes to light which, had it been known about at OPP stage, may have resulted in the permission being refused.

Where an authority is obliged to require EIA at reserved matters stage, how should the environmental information be taken into account?

The ECJ rulings are clear that 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 a project is likely to have significant effects on the environment. Planning authorities or the Scottish Ministers may therefore be obliged in some circumstances to carry out EIA even after OPP has been granted. In this respect the House of Lords ruling in case London Borough of Bromley ex parte Barker is helpful in clarifying that the need for EIA at reserved matters stage will depend on the extent to which the environmental effects have been identified at the earlier outline stage. Therefore, the Scottish Government considers that where EIA requirements are satisfied in full at outline stage the circumstances in which EIA will be required at reserved matters stage are rare. Nevertheless, the 2007 amendment regulations made new provision (regulation 3A(2)) to explicitly provide that planning authorities, or the Scottish Ministers, may impose conditions when granting an EIA application for approval of reserved matters that relate not only to the subject matter of the application, but to the project as a whole. Conditions relating to issues that go beyond those connected to the reserved matters may only be proposed as a result of environmental information taken into account in granting the reserved matters application; furthermore, they should extend only to those matters concerned with mitigating the project's impact on the environment.

If EIA requirements are satisfied fully at outline stage, the risk that new environmental information comes to light which, had it been known at outline stage may have resulted in the permission being refused, is minimised. Therefore, the circumstances in which an authority or the Scottish Ministers would wish to consider either revoking or modifying the original permission are considered to be exceptional. Were such action taken, there are associated provisions under S.76 of the Town and Country Planning (Scotland) Act 1997 allowing a person interested in the land affected to claim compensation from the planning authority.

For outline planning applications, how should an EIA be carried out so as to comply with the Directive and Regulations?

In this respect the Scottish Government considers the cases of R v Rochdale MBC ex parte Tew [1999 3 PLR74] and R v Rochdale MBC ex parte Milne [2001 81 PCR27] to continue to be of relevance.

Both cases dealt with a legal challenge to a decision of the authority to grant outline planning permission for a business park. In both cases an ES was provided. In ex parte Tew the Court upheld a challenge to the decision and quashed the planning permission. In ex parte Milne, the Court rejected the challenge and upheld the authority's decision to grant planning permission.

In ex parte Tew, the authority authorised a scheme based on an illustrative masterplan showing how the development might be developed, but with all details left to reserved matters. The ES assessed the likely environmental effects of the scheme by reference to the illustrative masterplan. However, there was no requirement for the scheme to be developed in accordance with the masterplan and in fact a very different scheme could have been built, the environmental effects of which would not have been properly assessed. The Court held that description of the scheme was not sufficient to enable the main effects of the scheme to be properly assessed, in breach of Schedule 4 of the EIA Regulations.

In ex parte Milne, the ES was more detailed; a Schedule of Development set out the details of the buildings and likely environmental effects, and the masterplan was no longer merely illustrative. Conditions were attached to the permission "to tie the outline permission for the business park to the documents which comprise the application". The outline permission was restricted so that the development that could take place would have to be within the parameters of the matters assessed in the ES. Reserved matters would be restricted to matters that had previously been assessed in the ES. The Judge emphasised that the Directive and Regulations required the permission to be granted in the full knowledge of the likely significant effects on the environment. This did not mean that developers would have no flexibility in developing a scheme. But such flexibility would have to be properly assessed and taken into account prior to granting outline planning permission.

He also commented that the ES need not contain information about every single environmental effect. The Directive refers only to those that are likely and significant. To ensure it complied with the Directive the authority would have to ensure that these were identified and assessed before it could grant planning permission.

The Court of Appeal in ex parte Diane Barker confirmed this approach.

What are the lessons of the Tew and Milne and Barker cases?

You will want to read these judgments carefully, but there are some general points about applications for outline planning permission:

i). An application for a "bare" outline permission with all matters reserved for later approval is extremely unlikely to comply with the requirement of the EIA Regulations;

ii). When granting outline consent, the permission must be "tied" to the environmental information provided in the ES, and considered and assessed by the authority prior to approval. This can be usually done by conditions although it would also be possible to achieve this by a section 106 agreement (the Scottish equivalent being a planning agreement under section 75 of the Town and Country Planning (Scotland) Act 1997). An example of a condition was referred to in ex parte Milne. "The development on this site shall be carried out in substantial accordance with the layout included within the Development Framework document submitted as part of the application and shown on (a) drawing entitled 'Master Plan with Building Layouts'." The reason for this condition was given as "The layout of the proposed Business Park is the subject of an Environmental Impact Assessment and any material alteration to the layout may have an impact which has not been assessed by that process." (see paras 28 and 131 of the judgment);

iii). Developers are not precluded from having a degree of flexibility in how a scheme may be developed. But each option will need to have been properly assessed and be within the remit of the outline permission

iv). Development carried out pursuant to a reserved matters consent granted for a matter that does not fall within the remit of the outline consent will be unlawful.

EIA and Unauthorised Development

If development has started without first obtaining the relevant planning permission is it necessary to carry out an EIA?

We think it unlikely that development that falls within a category in either Schedule 1 or 2 of the EIA Regulations would begin without having first obtained all necessary permissions, including planning permission. But in the event that it does you will still need to take account of the EIA Directive.

Regulation 29 of the EIA Regulations explains the procedures.

But what if the planning authority decides the "breach" of planning control doesn't warrant enforcement action?

The primary responsibility for enforcing planning control rests with planning authorities. In considering any enforcement action, planning authorities must consider whether the breach of planning control would unacceptably affect public amenity or the use of the land and buildings meriting protection in the public interest. However, that consideration cannot over-ride the requirements of the EIA Directive. When judging whether to take enforcement proceedings, planning authorities must therefore consider whether the development is EIA development - i.e. whether it falls within Schedule 1 or 2 and is likely to have significant environmental effects - before it takes its decision. If it concludes the development is EIA development, then its consideration will be limited by the need to comply with the legal requirements of the Directive.

What if I fail to comply with the Regulations?

It's possible that proceedings will be initiated by an aggrieved party either through the domestic Courts or by reference to the European Commission.

What challenges can be made in the domestic courts?

It should be evident from the Court cases referred to in this note that failing to comply with the Regulations may make a decision to grant planning permission unlawful and lead to it being quashed by the Court.

If the project is one to which the Regulations apply it is essential to comply fully with them. It is not sufficient to argue that EIA was not necessary because all of the information that could have been in the ES was available elsewhere and was taken into account before the decision was taken; or that had an ES been available the decision would have been the same.

In Berkeley v SSETR, the House of Lords unanimously emphasised the need to comply with the Regulations. It took the view that when considering compliance with the Regulations it was necessary to consider the EIA Directive. The Lords stressed that the importance of the EIA process extended beyond the decision on the application. Its purpose is to provide individual citizens with sufficient information about the possible effects and give them the opportunity to make representations. The Court was not entitled to decide after the decision had been made that the requirement of an EIA could be dispensed with on the ground that the outcome would have been the same even if these procedures had been followed.

Can complaints be made to the European Commission?

Individuals may, and frequently do, complain to the European Commission that planning applications should have been subject to EIA, or that where an EIA was undertaken the procedures were not followed correctly or the information in the Environmental Statement was inadequate. This can lead to formal legal proceedings between the Commission and the United Kingdom. This can be lengthy and prolonged and can create uncertainty for developers and planning authorities.

How can I avoid legal challenge?

Nothing can guarantee there will be no legal challenge. You can minimise the risk of a challenge being successful by taking care to ensure compliance with all of the Regulations. In particular you should ensure that:

  • Planning applications are properly screened and copies of screening opinions are placed on the planning register;
  • The Regulations are interpreted in accordance with judgments of the European and domestic courts - they have a wide scope and broad purpose. For example, housing development should not be excluded because it is not expressly referred to in the Directive or Regulations. If you are in doubt whether a proposed development falls within scope of the Regulations seek legal advice;
  • Planning conditions designed to mitigate adverse environmental effects are not used as an alternative to a proper EIA or to frustrate the objectives of the Directive and implementing regulations;
  • Environmental Statements contain all of the information required by Schedule 4 of the Regulations;
  • All of the likely significant effects that the project will have on the environment have been identified and taken into account prior to a decision to allow the project to go ahead;
  • The permission that is granted relates only to the project whose environmental effects have been described, assessed and mitigated in the ES. If the ES describes and assesses the effects of burning a single specific type of fuel in a manufacturing process, the consent for the project should be limited to its operation only with the fuel that has been assessed.
  • Keep a clear record of your decisions and why you have reached them.

Should you have any questions relating to this guidance please do not hesitate to contact me.

Yours Sincerely,

Cara Davidson

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Page updated: Monday, November 26, 2007