Planning applications: potential effects on the environment
13 December 2017
Laws that require local planning authorities to consider the potential effects on the environment of planning applications have been revised. Charles Felgate considers the changes
Local planning authorities and developers with projects that may have significant environmental impacts need to ensure that they are familiar with new regulations.
Environmental impact assessment (EIA) is an EU-derived concept, and the legislation is intended to bring environmental considerations into the preparation of projects.
It aims to ensure that development proposals that are likely to affect the environment significantly are subject to assessment and development consent before planning permission is granted.
Some types of development are always likely to have significant effects on the environment, so must always be subject to an EIA; but the effects of others will depend on factors such as their nature, size and location. The legislation therefore needs to make provision to determine when such projects will be subject to EIA.
Environmental assessment is now well established as an adjunct to the planning systems in the UK
The changes were necessary to give effect to amendments made to the EU directive relating to such assessments, made in a more recent directive that member states were required to implement by 16 May this year. Both the UK and Welsh governments consulted on amendments to relevant regulations and made new regulations accordingly. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017 cover town and country planning, while the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 cover nationally significant infrastructure planning.
Changes made in the new regulations include:
- introduction of coordinated procedures for projects that are also subject to assessment under the Conservation of Habitats and Species Regulations 2010
- a requirement for EIAs to identify, describe and assess the direct and indirect significant effects of a proposed development on: population and human health; biodiversity; land, soil, water, air and climate; material assets, cultural heritage and the landscape; and the interaction between these factors
- an amendment to the information required in an environmental statement, which must now be based on a scoping opinion if one has been obtained; in England, an environmental statement must be prepared by competent experts and accompanied by a statement from the developer, outlining the relevant expertise or qualifications of such experts; in Wales, it must be prepared by persons who in the opinion of the relevant planning authority or the Welsh ministers, as applicable, have sufficient expertise to ensure the completeness and quality of the person who prepared the environmental statement. On the face of it, these requirements could make it difficult to question anyone’s expert credentials, but this may prove controversial if applicants or objectors seek to challenge whether the persons who prepare particular environmental statements are competent or have sufficient expertise to ensure the completeness and quality of a statement
- a duty for authorities and the secretary of state or Welsh ministers to perform their duties in an objective manner and in such a way as to avoid any conflict of interest; the regulations also require authorities and the secretary of state or Welsh ministers to make arrangements for separation of functions when they make proposals for development that they will also be responsible for determining, so that the same persons will not be responsible for both functions. In practice, the need for objectivity is a well-established principle of public law and authorities are familiar with the need for separation of functions, so the inclusion of specific provision in the regulations is unlikely to make much difference
- the deadline for a local planning authority, the secretary of state or the Welsh ministers to adopt a screening opinion in response to a request to do so remains three weeks from the date of receipt of the request, with provision for the authority and the person who makes the request to agree a longer timescale; however, this is now subject to a limit that the longest deadline that can be agreed is 90 days from the date on which the person submits the request
- requirements for consultation when an environmental statement is submitted to a local planning authority after planning permission has been sought, and duties to inform the public and the secretary of state – or in Wales the Welsh ministers – of final decisions relating to planning applications involving EIAs.
Changes specific to England include greater scope for exemption from the requirements of the regulations, with the secretary of state having the power to direct that a proposed development is exempt if there are exceptional circumstances and the secretary of state considers that compliance would have an adverse effect on fulfilment of the development’s purpose and the objectives of the EU directive. The secretary of state may also direct exemption if a proposed development has national defence or the response to civil emergencies as its sole purpose, and the secretary of state considers that compliance would have an adverse effect on that.
Developers and local planning authorities will need to ensure that they operate to reflect the amendments to regulations relating to EIAs, for example by meeting requirements for more details. They will also need to be prepared for objectors to planning applications to examine the requirements of the new legislation closely, with the aim of using any evidence of non-compliance as a basis for challenging decisions.
On the positive side for developers, the more stringent requirements for information in environmental statements may encourage them to provide more than they have done previously on mitigation against potential environmental impacts, and so they may potentially avoid the need for EIAs.
The provision of such information would already be consistent with case law from R (on the application of Champion) v North Norfolk District Council  UKSC 52, but the inclusion of this in the relevant legislation may encourage developers to pay increased attention to it. For local planning authorities this may increase the administration required when analysing environmental statements, though it could also increase efficiency in the overall process of monitoring the environmental impact of developments.
Environmental assessment is now well established as an adjunct to the planning systems in the UK. However, the EU directives on environmental assessment and thus the related UK regulations are procedurally prescriptive, and have been a fruitful source of legal challenges to planning decisions. It will therefore be interesting to see if the UK’s withdrawal from the EU and the 'repatriation' of powers over environmental assessment will see a reversion to the more traditional British approach of less procedural formality backed up by administrative policy or guidance.
Charles Felgate is a partner at Geldards