Appeal judges set strict test for EIAs

The Court of Appeal has set out clear guidelines on whether developments require environment impact assessments (EIAs) before planning permissions are granted.

The case involved the redevelopment of a bowls club in Bexhill-on-Sea, to provide 41 sheltered flats as well as a new outdoor bowling green.

The court heard that the previous communities and local government secretary, John Denham, gave a ‘screening direction’ in 2009, stating that the development was not likely to have ‘significant effects on the environment’ for the purposes of the Town and Country Planning (EIA) Regulations 1999 and no EIA was needed.

Giving the leading judgment in R(on the application of Loader) v secretary of state for communities and local government [2012] EWCA Civ 869, Lord Justice Pill said Anne-Marie Loader’s standing to make the judicial review application had not been challenged.

Counsel for Loader, a local resident, argued that the secretary of state has misdirected himself in law as to the meaning of ‘significant effects on the environment’ in article 2(1) of the EU Environmental Impact Assessment Directive (85/337/EEC).

Pill LJ said the appellant argued that a significant environmental effect was one that “has a real prospect of influencing the outcome of the application for development consent”.

He went on: “The expression must be given an autonomous meaning which has regard to its context and the purpose of the directive. Underlying the procedure is the purpose of achieving a high level of environmental protection through the precautionary and preventative principles.”

Pill LJ said counsel for the secretary of state submitted that the appellant’s test was “not appropriate” to the purpose of the directive.

This argument stated that assessment of the impact of an environmental consideration on a particular planning decision posed a different question from assessing whether the same consideration was likely to have significant effects on the environment.

Otherwise, counsel for the secretary of state argued, “almost any planning application contested on environmental grounds would require an EIA”.

Lord Justice Pill concluded: “What emerges if that the test to be applied is: ‘Is this project likely to have significant effects on the environment?’

He said this was clear from the European and national authorities, including the Commission guidance, which recognised that national guidance and planning authorities had a “degree of freedom in appraising whether or not a particular project must be made subject to assessment”.

Pill LJ went on: “The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision.

“Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment.

“There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker.”

Pill LJ said establishing that the environmental effect will influence a particular development consent decision may well be a necessary requirement for a decision that development is EIA development, but “is not determinative of whether the effects are significant”.

He said the test proposed by the appellant did not accord with the “overall purpose and tenor” of the procedure set out in the directive.

“To require it to be followed in all cases where the effect would influence the development consent decision would devalue the entire concept.

“It is not contemplated, for example, that if the secretary of state took the view that a proposed house extension might affect the amenity of a neighbour on environmental grounds, and do so decisively, it would for that reason necessarily be EIA development.”

Pill LJ dismissed the appeal. Toulson LJ and Sullivan LJ agreed.

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