When a development proposal requires an Environmental Impact Assessment (EIA), the developer must submit an Environmental Statement (ES) alongside its planning application. The purpose of the ES is to provide information on the project's likely significant environmental effects and any proposed mitigation measures. The ES is required to be provided to specified consultation bodies and publicised for the benefit of any third parties interested in the planning application. The ES, any further information submitted to validate the ES and any additional substantive information relating to the ES and submitted by the applicant, together with responses from consultation bodies and members of the public, constitute the environmental information that the decision-maker must take into account in determining the application for the project.
If environmental information comes to light during consideration of the planning application that ought to form part of the ES, then this too is required to be publicised for the benefit of third parties.
Given that some form of further information on environmental aspects of a project – even if only clarifying correspondence – is generally produced subsequent to the submission of the planning application, the question frequently arises as to whether a particular piece of information must be formally publicised as an element of the ES.
Corbett v Cornwall Council
Mr Corbett's claim was for judicial review of a decision to grant planning permission for five 100m wind turbines.
The application, submitted in February 2011, had been accompanied by an ES in accordance with the then applicable Town and Country Planning (EIA) Regulations 1999 (the EIA Regulations). Various bodies were consulted, and the applicant carried out further studies on certain matters to respond to concerns raised by consultees. The Claimant requested, and was given sight of, information on the planning officer's file (including over 100 e-mails).
When planning permission was granted, the Claimant challenged the decision to grant on the ground (amongst others) that the defendant authority had failed to disclose and make available to the public all relevant documents prior to the decision. He relied on several legal regimes for this purpose, including the rules contained in the applicable EIA Regulations. His claim for judicial review was dismissed.
The EIA Regulations require that, where the decision-maker is of the opinion that 'further' or 'other' information is needed for the document submitted as an ES to qualify as an adequate ES, such information must be publicised in a prescribed manner. The decision on the planning application is then delayed until consultees have had a period of time to respond to the additional information. (Corbett considered Regulation 19 of the 1999 Regulations, as it applied at the time. The rule was reiterated in Regulation 22 of the 2011 EIA Regulations and again, with some modifications, in Regulation 17 of the Infrastructure Planning (EIA) Regulations 2009, which applies to applications for Nationally Significant Infrastructure Projects under the Planning Act 2008).
One of the issues considered in depth in Corbett is whether particular environmental information triggered the publicity requirement under the EIA Regulations. The Claimant essentially submitted that any substantive information provided by the applicant for planning permission on matters covered in the ES would trigger the publicity requirement.
Criteria for information to be 'further'/'other' environmental information requiring publicity
The judge, Lewis J, was careful to distinguish different categories of environmental information under the EIA Regulations. While the ES by definition included any relevant further and other environmental information as well as representations by consultation bodies, the specific 'further'/'other' information that triggered a publicity requirement was only a part of the environmental information capable of constituting the ES – the part that was essential for an adequate ES.
Lewis J set out the following principles for the identification of information that would require formal publicity under the EIA Regulations:
- "Substantive information provided by the applicant to ensure that the Council is provided with the information required for inclusion in an environmental statement as required by Schedule 4 to the EIA Regulations" (emphasis added). In other words, it is information without which the ES would be inadequate.
- 'Further information' is information as per the above that has been required at the direction of the decision-maker to complete an inadequate ES. 'Any other information' is information provided voluntarily to complete an inadequate ES – Lewis J suggested that this would cover a situation where an applicant took the initiative to prepare such information rather than being required to provide it.
- Conversely, "comments or responses made by the applicant in response to concerns of, or points raised by, third parties" are not automatically information required to be publicised under the EIA Regulations; nor does the fact that a Council officer may have asked for them make them so. Therefore, it is not the case that just because the decision-maker has asked for particular information or clarifications, the response is environmental information that requires publicity. Lewis J found that the EIA Regulations recognise a distinction "between the information forming an adequate environmental statement and information arising during the planning process", with the former subject to the requirements of public notification, the latter only to rights of public access on request.
Criteria the same under the Planning Act 2008 Regime
Similar issues have recently arisen in the context of EIA required for Nationally Significant Infrastructure Projects under the Planning Act 2008 and the Infrastructure Planning (EIA) Regulations 2009.
The RSPB in particular has been vocal in requesting that any "new information" be publicised. The Planning Inspectorate responded to RSPB (in a publicly available letter dated 22 January 2014) by echoing Lewis J's comments: "Where information is received, there is no obligation to suspend consideration of the application [to go through the formal publication procedure] unless (in exceptional circumstances) it is environmental information which is required to remedy deficiencies in the ES." The letter went on to suggest that in some circumstances, which presumably fell short of the "exceptional circumstances" mentioned above, "the Examining Authority may decide that an amendment to the examination timetable is required in order to deal fairly with the additional information."
The key point to consider is therefore whether any information on environmental matters provided to the decision-maker subsequent to the initial application and ES submission is information that is necessary for an adequate ES – in other words, an ES that complies with the requirements of the applicable EIA Regulations.
Developers' take-away points
- It is up to the planning decision-maker to judge whether any further environmental information is integral to an adequate ES, therefore requiring formal publicity.
- However, where in the opinion of the developer further information submitted is merely clarification or further detail that is not essential to the assessment of likely significant effects (rather than the addition of information required to rectify an inadequate ES), the developer should state this clearly to the decision-making authority.
- If the developer concedes that additional environmental information produced is required for an adequate ES, then it should take the initiative, alert the decision-maker itself and instigate publicity of that information so as to minimise the risk of a subsequent planning permission being vulnerable to challenge.