The development process can quickly become tangled up in rules governing pre-existing flora and fauna. Here’s the lay of the land …

mark clinton

Our recent articles in Building have examined the environmental issues arising from construction work. In this article, we will focus on the issues and regulatory regime surrounding the impact of development on the pre-existing environment on and around the site.

There are several statutory provisions designed to protect particular species of flora and fauna and to provide a basis for prosecution of those who harm them (or, in some cases such as Japanese knotweed, assist their propagation). These issues are covered in the development process by a raft of rules, which together comprise what are generally known as the Environmental Impact Assessment Regulations.

These regulations, which give effect to European directives, require an environmental statement to be provided as part of the planning process to enable an environmental impact assessment (EIA) of the development to be carried out. For some types of project, a statement and EIA is always required - these are identified in the regulations and are generally industrial, utility and infrastructure related. Some types of developments are exempt.

For the rest, it is left for the planning authority or secretary of state to decide if an EIA is required. In these cases, the usual procedure is to seek a screening opinion from the planners. The recent case of R (oao Loader) vs SS Communities and Local Government confirms that the relevant test to be applied by the planning authority or secretary of state is whether the project is likely to have significant effects on the environment.

The planning authority must make available to the public: environmental statements, screening opinions, their decisions and the reasons and considerations on which they are based, a description of the measures to be taken to deal with the major adverse effects of the development (where applicable) and information on the right to challenge decisions.

All of this is fertile ground for those opposed to development to seek to derail or disrupt. There is scope for opponents to challenge decisions on the basis of their merits and/or procedural correctness. Challenge is generally through judicial review although timely intervention in the planning process itself can cause the disruption sought by objectors or competitors.

All of this is fertile ground for those opposed to development to seek to derail or disrupt

Where challenge is by judicial review, the usual requirement that the challenger must act promptly in bringing his claim does not apply. This follows a court decision in 2011 which now means that any challenge by judicial review must be made within three months of the relevant decision.

The law reports are dotted with decisions on such challenges, both here in the UK and in the European Court of Justice. Some of the UK decisions indicate that the courts here may take a pragmatic approach to these matters - for example the (at first sight surprising) decision of the Court of Appeal in R (Ardagh Glass Ltd) vs Chester CC to the effect that the grant of retrospective planning permission where the EIA was carried out after development would not necessarily breach the original EU directive.

Other cases show the reach of the regulations. For example, in R (Prokopp) vs London Underground Ltd, the Court of Appeal held that an application to vary conditions previously attached to a planning permission was in effect an application for a new planning permission and, accordingly, the planning authority was required to consider the need for an EIA.

The courts are also alive to the risk of the challenge process being abused by challengers motivated not by a desire to protect the environment but to delay their competitors’ schemes - see the comments of the Court of Appeal in R (Noble Organisation) vs Thanet DC.

We have seen in the field of public procurement, an increased willingness to challenge the decisions of public authorities and the difficulty the authorities have in complying with the sometimes imprecise regulations introduced to implement EU directives. It seems likely that similar challenges under the EIA Regulations will be another regular feature of the minefield that must be negotiated to get a development off the ground.

Mark Clinton is a partner and James Clark a solicitor at Thomas Eggar