‘Where the EIA procedure has not been fully carried out prior to approval at the outline planning permission stage, it must be possible for it to be carried out prior to approval of an application for approval of reserved matters. This necessitates a change to our existing EIA Regulations’.

The Government issued a consultation paper on 19 October 2007 setting out proposed amendments to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in light of the two related judgments of the European Court of Justice in R v London Borough of Bromley ex parte Barker ( C-290/03) and Commission v UK ( C 508/)3) of 4 May 2006 (the ECJ Judgments).

Prior to the ECJ Judgments, the position as regards EIA and outline planning permissions was encapsulated in paragraph 48 of Circular 2/99 (Environmental Impact Assessment) which states that ‘where EIA is required for a planning application made in outline, the requirements of the Regulations must be fully met at the outline stage since reserved matters cannot be subject to EIA.’

The ECJ ruled that in taking this stance the UK had failed properly to transpose the EIA Directive because the 1999 Regulations precluded the possibility of an EIA being required at the reserved matters stage. The ECJ ruled that the process of granting outline planning permission and subsequently approving reserved matters constituted a ‘multistage’ development consent within the meaning of Article 1.2 of the EIA Directive.

It follows from this that in order to achieve compliance with the Directive, whilst it is preferable for an EIA to be undertaken at the first stage (application for outline planning permission) the possibility of an EIA being needed at the second stage (application for reserved matters) should not be precluded.

The draft Town and Country Planning (Environmental Impact Assessment) (Amendment) (England) Regulations 2007, if enacted, will amend the 1999 Regulations and enable an EIA to be required at the reserved matters stage for outline applications. They will also enable an EIA to be required as part of the process of discharging conditions attached to full planning permissions as this too constitutes a multi-stage process.

It is anticipated that there will be only a limited number of cases in which an EIA may be required at the reserved matters stage. They include circumstances in which proper screening/scoping was not carried out at the outline stage or where likely environmental effects were not identified or identifiable until the reserved matters stage. Local planning authorities will need to make sure that when an application is made for approval of reserved matters, they screen the development again to determine whether all of the likely significant environmental effects have been considered in order to satisfy the Directive.

Circular 2/99 will be amended, and a new good practice guide on EIA will also be published when the Regulations come into force, expected to be by the end of January 2008. A summary of responses to this consultation paper will be published on the CLG website within 3 months of the closing date, which is the 11 January 2008.