Update | Environment: EIA and early public consultation

The case law that has emerged from challenges over environmental impact assessment (EIA) has directed scrutiny of development away from negotiation between the planning authority and the developer to a broader public and statutory consultation. This is largely due to the fact that the domestic EIA regime (Town & Country Planning (EIA) Regulations 2011) derives from EU legislation (Directive 85/337/EEC now consolidated 2011/92/EU) where it is regarded as central to preventing unnecessary environmental harm.

The purpose of EIA is to identify significant environmental effects of developments as early as possible in the planning consent process, including impact on human health and amenity, such as noise or odour, via an environmental statement (ES). The planning authority can then demand appropriate mitigation measures or, if the adverse impact cannot be satisfactorily mitigated, refuse consent. Regarded as a burden by many, it’s also an opportunity to maximise the benefits of a development by giving the overall project proper consideration at the planning stage and inviting feedback from members of ?the public.

The right of the public to participate in consultation, was first emphasised by the House of Lords in Berkeley v Secretary of State for the Environment [2000] 2 AC 603. This directly enforceable right does not arise from having expert knowledge or a pecuniary interest in the development but because EIA development by definition has a significant environmental impact ?on everyone.

Screening

Obviously not all development that requires planning permission necessitates EIA. The planning authority screens on the basis of a brief description of the project and a plan. If a proposal is likely to have significant environmental effects (SEE), it requires an environmental statement to be submitted and considered before planning consent is granted. The production of the ES is the responsibility of the developer and depending on the complexity of the project, can be a very detailed, lengthy document, although many ESs would be more useful if written succinctly. Additionally, EIA development must be publicised, as should any information that is supplied post-ES. For some developers, therefore, it is desirable for their project to be screened out of the EIA process.

The screening exercise can be analysed in two parts: first, what environmental effects of a development are likely? Second, will the likely effects have a significant impact (either adverse or beneficial)? In R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157, the Court of Appeal held that ‘likely’ in the context of EIA screening meant less than the balance of probabilities but higher than a ‘bare possibility’, settling on ‘any serious possibility’ as sufficient.

In R (Loader) v SSCLG [2012] EWCA Civ 869, the claimant argued that a SEE should be taken as one that “…has a real prospect of influencing the outcome for development consent”, with the underlying aim being to achieve a high level of protection for the environment on a precautionary basis. The Court of Appeal disagreed, holding that the test of significance of an effect could not be equated to its scope for influencing the grant of consent as that test was too broad. The judgment as to what effects are likely to be significant, if any, is one for the planning authority, exercising its expert judgment.

Pill LJ, delivering the leading judgment, went on to say, “Subject to that [uncertainty over effectiveness of mitigation], proposals for ameliorative or remedial measures ?may be taken into account by the ?decision maker.”

The question of whether and to what extent mitigation measures can be relied upon at the screening stage to exclude projects from the EIA process is controversial. The concern is that relying on mitigation measures to exclude development that would otherwise have SEE requires certainty that those measures will be effective and will not generate SEE in their right. Certainly some mitigation measures, such as plumbing and sewerage connections for residential development, are so well established that they must be taken as part of the project for a whole. But for more complex or novel mitigation measures, if they are not as effective as the developer proposes (in the context of the very limited information that is provided at the screening stage) then the project will have SEE which have not been assessed. If those effects only become apparent after the development is completed, subject to conditions, there will be no avenue for redress for members of the public who are adversely affected, apart from possibly taking proceedings in private or statutory nuisance. If environmental damage is caused by the SEE it may be very difficult to put it right.

Post-screening

EIA regulation 4(6) requires reasons to be given for the screening decision taken by the planning authority. The duty originally was restricted to positive screening decisions, on the basis that the developer should be made aware of why the planning authority had decided to impose the additional burden of producing an ES and the attendant publicity requirements. However, in Case C-75/08 R (Mellor) v SSCLG, the ECJ held that although the planning authority was not required to give reasons in the determination itself, it must be able to provide them if requested by a member of the public because the screening decision must be accompanied by all the information required to check that adequate screening has been carried out. The ECJ specifically underlined the importance of members of the public having the right information so that they may decide whether the decision should be made subject to judicial review

The duty to consult the public remains critical after a positive screening decision has been made and the ES produced. Article 6 of the EIA Directive states that: “The public concerned shall be given early and effective opportunities to participate in the environmental decision-making”.

In R (Halebank Parish Council) v Halton Borough Council [2012] EWHC 1888 (Admin), HHJ Gilbart QC held that merely satisfying the statutory minimum consultation periods as set out in the EIA regulations would not always fulfil the duty put on planning authorities by Article 6. There had to be consideration whether on the facts there was sufficient time for the public to become properly informed and comment accordingly. The issue in the case was a major retail development, which was approved over the bare minimum period for consultation, at a special meeting in August when it was known that members of the claimant Parish Council would be on holiday and unable to meet. Requests for the committee meeting to be delayed were refused. The judge commented that the consultation was not dealt with fairly or effectively and those who disagreed with the proposal were “put to a considerable disadvantage”.

But what if in the course of consultation on the ES members of the public are not satisfied that it comprises an accurate or comprehensive description of the particular project’s SEE? Challenges to the contents of an ES are rare because they depend on being able to show that the planning authority’s decision to accept the ES as adequate was Wednesbury irrational and not merely an exercise of expert judgment which the members of the public concerned disagrees with. Yet, in some instances an ES, being prepared by the developer with a view to obtaining planning consent, does not present the environmental effects of a development in an objective or neutral way. Although the preparation of the ES is often the task of experts exercising professional judgment, they are not under a duty to give an independent opinion as an expert acting for one party or the other in court proceedings. In some European countries, such as Sweden, an independent body produces ES for the use of the planning authority so as to avoid the potential for biased documentation. The adoption of such a body in the UK would go far to reassuring the public that ES are properly representative and accurate.

A related issue is that of cumulative impact of successive EIA development, which was considered most recently by the Court of Appeal in Bowen-West v SSCLG [2012] EWCA Civ 321. The developers in that case were seeking permission for a project to deposit low level nuclear waste at a hazardous waste landfill site in Northamptonshire. It was known that the developers intended to make a further application at a later date to extend the waste site. The claimant argued that the SEE of that extension should be considered in the EIA for the extant application on the basis that environmental effects should be assessed ‘at the earliest possible stage’ and that the grant of permission for the current application would be a ‘foot in the door’ for the later extension. The Court of Appeal rejected the argument on the basis that if a further extension application was made, the environmental effects of that application would be properly considered at that time. Laws LJ drew a distinction between screening whether ‘project splitting’ had taken place in order to avoid the EIA ?regime was a proper issue for the courts ?to review, and whether restricting the scope of the project to be considered in the ES to the immediate proposal is an appropriate question of judgment for the decision maker.

It is not entirely clear why in the Court’s view one stage should be amenable to judicial scrutiny and the other not when the issues arising at both centre on whether the project in its entirety (including its indirect, secondary and cumulative effects) has been properly considered.

A third, related issue is that there is no mechanism for checking whether the ES was in fact accurate. Once planning permission is granted, as long as the developer adheres to conditions and does not need to make further applications for permission, there is no opportunity for the planning authority to revisit the ES and the project to see if the predictions as to environmental impact were correct. As long as planning authorities are sufficiently vigilant in their enforcement activity and as long as it is possible to bring nuisance proceedings, there is no need to retrospectively examine the ES. However, this increases the temptation on the part of developers to couch the ES in terms that will increase the chances of having consent granted, rather than portraying accurately and fairly the environmental impact of ?the development.

The Future

The case law indicates that, if one is advising an applicant contemplating a sizeable project, the sensible approach is to engage at an early stage in the EIA process, accept the production of an ES as inevitable and ensure that it is adequately publicised. Although the EIA regime is strict in that a failure to comply with the regulations will normally attract a remedy, it is strictly procedural. It is much harder for third parties to bring a challenge on the substance of an ES and its conclusions than whether one should have been produced in the ?first place.

If one is advising a member of the public who is concerned about the environmental impact of a proposed development, the message to get across is that you are entitled to the information required in order to understand the proposal and to properly inform your objections. If the decision does not go the way you want; you are entitled to know the reasons why. The involvement of the public in planning decisions where significant environmental effects are likely is an integral part of environmental protection and the EIA regime exists to ensure it happens.