Worse, if an environmental statement (ES) is not submitted, viewed as flawed, or not dealt with in accordance with the prescribed procedures, then the decision to grant consent could be the subject of a legal challenge by third parties.
According to the Environmental Impact Assessment Regulations, which implement a European Commission directive, planning consent cannot be granted without the relevant environmental information being considered in accordance with a prescribed procedure. Some sorts of projects always require an EIA; others do only if the project is likely to have significant environmental effects. But an EIA is not discretionary. If a project is judged likely to have significant effects on the environment, an EIA will be required.
There are three broad stages to the EIA process. The developer must provide details of the likely environmental effects in an environmental statement. The ES (a single, easily comprehensible document) must then be publicised, and relevant authorities and the public must be given an opportunity to comment on it. Finally, the ES and any representations on it must be taken into account in deciding whether or not to give consent for the development.
It is not sufficient merely to make environmental information available – it has to be done in the right way and at the right time. The House of Lords has ruled that in cases where the directive applies, planning permission will only be lawfully granted if there has been substantial compliance with the directive. The court has no discretion to dispense with the obligation for an EIA, even if its omission does not affect the outcome of the application, or if the determining authority was in possession of all the information required to reach a decision on environmental issues.
Neither the directive nor the regulations actually determine whether consent should be granted. If the EIA reveals that a project will have significant effects on the environment, this does not mean permission should or will be refused.
Developers need to obtain as much certainty as possible at an early stage as to whether or not an EIA will be required. This may be obvious from a review of the schedules to the regulations. In any event, the developer's lawyers should be able to advise clearly on this important issue.
A screening opinion, which determines whether an ES is required, can also be obtained from the local planning authority. Where a planning application is submitted without an EIA or a screening opinion, the local authority must either gain more information, if required, or adopt a screening opinion at that point.
The planning authority can be asked for a "scoping opinion". This allows the developer to be clear about what the local planning authority considers the main effects of the development are likely to be, and therefore the topics on which the ES should focus. A request for a scoping opinion can be made at the same time as a request for a screening opinion.
It is important that developers ensure that the decision as to whether an EIA is required is taken by the appropriate authority, for example, the planning committee, or the secretary of state.
In some cases, a local authority officer may be formally authorised to take that decision. Planning permissions have been quashed where this was not the case, resulting in a loss of time and money. Developers should ensure that the authority's response is confirmed in writing and that they obtain evidence that the relevant authority has been given to the relevant officer.
When preparing an ES, the legislation should be reviewed to check that all up-to-date requirements are met and to ensure that all relevant issues are addressed. Circular guidance from the DTLR and good practice guides can be helpful, particularly because compliance with their suggestions, although not entirely judge-proof, will help to minimise the risk of a successful challenge.
Karen Cooksley is head of planning and environment in the public law group at Masons.