Deep impact

In a traditionally litigious marketplace, developments surrounding the Environmental Impact Assessment are likely to have far-reaching consequences for planning, says Duncan Field

Ask any planning lawyer to name the most influential person in planning this year and the name Barker is certain to feature. However, the reference may mean either Kate Barker, who is spearheading the Treasury’s review of the planning system, or Diane Barker, whose case against the London Borough of Bromley was the subject of a ruling on the Environmental Impact Assessment (EIA) by the European Court of Justice (ECJ) on 4 May.

A two-stage system

The EIA has been with us for a long time. It was first introduced by a European Directive in 1985 and later modified by a further directive in 1997. Its purpose is to ensure that projects that are likely to have significant effects on the environment “are made subject to a requirement for development consent and an assessment with regard to their effects”. The current regulations that give effect to the EIA Directives in England are the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

There have been numerous court cases concerning the implementation of the EIA Directives in the UK and the extent of compliance with them in individual cases. This litigation has been around for almost as long as the directives and all too often resulted in planning permissions being overturned or, at the very least, years of delay and additional cost to major development projects.

A number of these cases identified particular problems with applications for outline planning permission. Such an application marks the beginning of a two-stage consent process whereby the principle of development is established at stage one (outline planning permission) and the detailed design is established at stage two (reserved matters approval).

The first problem concerns the adequacy of information at stage one. Traditionally, outline applications contained few details about a proposed development; as a result it was not always possible to determine whether the development was likely to have significant environmental effects and, if so, what those effects were. Today, in practice most outline applications overcome this problem by including limits on variables, such as location, height, floorspace etc, which would otherwise alter significantly the effects of a project. Such details are about to become mandatory following changes introduced by the Government earlier this year. This means that an assessment of likely significant environmental effects can be undertaken in the knowledge that the project will be no worse than the development described in the application.

The second problem relates to when the EIA can and should be required in the two-stage process. It had been assumed that, once outline permission had been granted (with or without the EIA) and the time limit for legal challenge had passed, the question of the EIA could not be raised again at stage two. This was based on two principles: first, for reasons of legal certainty, the developer and others were entitled to rely on the validity of an outline permission that had gone unchallenged; and second, the EIA Regulations in this country did not permit a decision-maker to require the EIA at stage two.

ECJ ruling

It is this second problem that has unravelled in the Barker case. The ECJ established the following principles:

– Under EU law, a project that is likely to have significant environmental effects must be assessed before development consent is issued.

– Where development consent is issued in two stages, both stages constitute the “development consent”.

– Although it is preferable for the EIA to be undertaken at stage one, if the need for it is not identified until stage two, an assessment should be required at that stage.

This is a fairly concise and, with hindsight, unsurprising set of principles, but in practice there will be some far-reaching consequences:

– The UK regulations will have to be amended so that the EIA can be required at stage two of the consent process.

– In practice, the ability to implement an outline planning permission can now be brought into question by third parties on EIA grounds months, or even years, after it has been granted by challenging a reserved matters approval.

– Where developers have outline planning permission and have not yet secured approval of all reserved matters, they will need to look critically at whether the EIA was omitted correctly or undertaken properly at stage one and, subject to risk of challenge and other commercial considerations, address any shortcomings as they secure the remaining approvals.

– Developers will also need to consider whether, despite a watertight EIA at outline planning permission, there have been significant changes in circumstances, such as the baseline conditions against which the project was assessed, since that could mean new or different environmental effects now need to be assessed before reserved matters approval can be issued.

Government guidance

On 30 June 2006 the newly formed Department for Communities and Local Government (DCLG) issued interim guidance on the Barker case to chief planning officers around the country. It is only ‘interim’ because the final decision of the House of Lords (which requested the ECJ ruling) is still awaited in this case.

The DCLG acknowledges that the EIA Regulations will have to change. However, since the EIA Directives have direct effect, in that they are enforceable through the UK courts by individuals, the DCLG advises that local planning authorities – and the Secretary of State in the context of planning appeal decisions and applications recovered from local planning authorities – will need to satisfy themselves now that there has been compliance with the requirement for the EIA at both stages of the consent process.

The DCLG draws attention to the following circumstances where likely significant effects may require further assessment at the reserved matters stage:

– if the effects were not identifiable or identified at the outline stage; or
– if the effects were identifiable but require a fresh assessment, for example because of a significant change of circumstances.

The DCLG’s gloss on this is that the consequences of the Barker case do not necessarily mean more work for developers and local authorities. If at the outline stage the EIA was undertaken properly or a robust decision was taken not to require the EIA, then the need for further assessment at the reserved matters stage is unlikely.

In theory the DCLG’s comforting words are accurate, but this is an area of law with a long history of litigation and the EIA has become a process that, in response to the risk of litigation, has become obsessed with risk management. In practice, therefore, the scope for further work, further delay and further complexity in the planning system should not be underestimated.

It is perhaps ironic that two women who share the same surname will leave legacies to the planning system that pull in different directions. As Kate Barker looks at ways in which the planning system can be more responsive and more efficient, Diane Barker’s case looks set to introduce more hurdles for the developer and a few new tricks for an old dog called the EIA, which those who want to stop or delay development are certain to use to their advantage. n
Duncan Field is a partner at SJ Berwin