The Secretary of State for Communities and Local Government issued a letter to all chief planning officers in November 2009 in relation to two court decisions which could impact the way in which local planning authorities approach Environmental Impact Assessments (EIAs). The Secretary of State confirms that amending legislation is being considered, but in the meantime the cases will need to be taken into account.

The two cases are:

1. Baker v Bath and North East Somerset Council and Others

Under the relevant EIA regulations, local authorities must screen applications to determine whether they are within the criteria under which an EIA is required. If a development proposal would be likely to have a significant impact on the environment, an EIA is required.

This case examines the screening procedure used in relation to planning applications for a change or extension to existing or approved development. The present EIA regulations require only that the screening process consider the proposed modification itself (and not the wider picture of the development as modified). The court in Baker ruled that, in this regard, the regulations do not comply with the EU Directive on environmental assessment, out of which they are derived.

The effect of the decision in Baker is that when determining whether or not an EIA is required, the authority must look at the development as modified, not just the modification alone.

This approach also applies to situations where the modification does not meet the thresholds set out in the regulations, and to development in special areas (such as conservation areas) where the thresholds do not apply.

Planning authorities are advised that where they receive an application for a modification to a permission which does not meet the thresholds in the regulations, they should ask the Secretary of State to consider making a screening direction stating whether an EIA is required.

The decision also advises that authorities should consider the requirements for consultation with members of the public who feel that the proposals might have significant effects of the environment.

For developers, this case could mean that the time taken by authorities to consider modification applications will be longer, especially if there is a referral to the Secretary of State. Possibly worse is the potential for public consultation and the generation of additional objections.

2. R (on the application of Mellor) v Secretary of State for Communities and Local Government (decided in the European Court of Justice)

This case considered whether, under the EU Directive, authorities are required to give reasons to the public for issuing a screening opinion to the effect that no EIA is required.

If a screening opinion is issued which requires an EIA to be submitted, there is a requirement to give reasons for making that decision. However the Secretary of State is of the view that there is no need for reasons for the decision to be given where the opinion states that no EIA is required. If a member of the public wanted such information, an application could be made under the Freedom of Information Act.

The preliminary ruling of the European Court of Justice is that the Secretary of State's view is correct but that there is a duty to provide reasons for a negative screening opinion if a member of the public requests it. The information which should be made available may be by way of a formal statement and also by the production of relevant documents. The information provided should be sufficient to allow the member of the public to decide whether to appeal against the decision.

Town and Village Greens - the story continues

Following research into the registration of new Town and Village Greens (TVGs), the Department for Environment, Food and Rural Affairs (DEFRA) has recently received a final report.

Unsurprisingly, the research found that more than half of the applications reviewed related to sites for which development proposals were in place.

DEFRA states that the research indicates there is sufficient evidence to justify a review of the existing system. Consultations will commence in spring 2010 on the need for reform and the options that exist.

It is this author's firm opinion that the changes in the Commons Act 2006 favoured the case for registration of land as a TVG at the expense of legitimate development proposals. This consultation may provide an opportunity to re-examine whether the correct balance has been struck between preserving valuable recreation and amenity land and the need for development to proceed.

Greater flexibility for planning permissions

Recently, measures were introduced relating to:

  • extensions to the time limits for implementing existing planning permissions
  • non-material amendments to existing planning permissions
  • minor material amendments.

See our report on the consultation in the July/August 2009 property update.

The Secretary of State for Communities and Local Government has published guidance on the use of these measures.

Annex A of the guidance contains a useful summary table of the three types of application and how they can be made.

Access for disabled customers

Another chance to read our alert on a landmark decision regarding the duty to make reasonable adjustments to premises.