Member Article

Environmental Impact Assessments

With Watson Burton LLP Law Firm

The Department for Communities and Local Government has published a consultation paper which will have a significant impact on the property development industry. The proposals would mean that an environmental impact assessment is required not only at the detailed planning application stage but also at the outline stage where there are reserved matters, the full environmental impact of which is not yet known. Previous to this reserved matters were not thought to be a “planning application” and therefore outside the ambit of the EIA Directive. However, a ruling of the European Court of Justice (‘ECJ’) has held that this is not the case.

The proposals follow the European Commission’s threat to bring legal proceedings against the United Kingdom for failing to comply with the ruling of the ECJ in 2006 in R v London Borough of Bromley ex parte Barker. The ECJ held that an environmental impact assessment may be required at the reserved matters stage in order to comply with the EIA Directive which came into force in May 1988. At the time of the decision the Government indicated that it would draft new legislation in this area requiring an environmental impact assessment at both the outline and detailed planning application stages.

The primary amendments mean that there would be a need to undertake an EIA at the reserved matters stage when:

• An EIA should have been required at the outline planning application stage but the relevant planning authority failed to issue a screening opinion;
• Where an EIA was not required at the outline planning stage but subsequent circumstances mean that the relevant planning authority decides that there is likely to be a significant environmental impact; or
• Where an EIA was required and an environmental statement was prepared but the statement was required to be updated or revised.

The proposed changes would clearly impact the development industry as environmental factors would become even more significant than at present and may have to be taken into account at an earlier stage.

It is anticipated that the changes may come into force by the end of January 2008. The consultation paper (The Town and Country Planning (Environmental Impact Assessment) (England) (Amendment) Regulations 2007) is available for viewing at www.communities.gov.uk/publications/planningandbuilding/towncountryplanning. Responses should be emailed by 11 January 2008 to Kim Chowns at kim.chowns@communities.gsi.gov.uk.

If you have any comments or questions about this article or any other property related matters please contact Laura Keegan by email at laura.keegan@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .