Legal Viewpoint: Shedding light on screening powers

In a recent case from Leicestershire, the High Court considered the correct approach to screening opinions and the cumulative impact of projects under the Environmental Impact Assessment (EIA) Regulations 2011.

The secretary of state had issued a screening direction confirming that a proposed scheme of 150 homes did not require an EIA. A rival developer, Commercial Estates Group (CEG), had lodged a planning application for a project on the same land as part of a much wider sustainable urban extension, which broadly conformed to the draft core strategy.

The 2011 regulations require "the cumulation with other developments" to be taken into account, and the relevant European guidance describes cumulative impact as being "impacts that result from incremental changes caused by other past, present or reasonably foreseeable actions together with the project".

The screening direction had determined the question of whether the proposed scheme would, if implemented, be likely to significantly affect the environment. Crucially, the draft core strategy and the urban extension proposals were in a state of limbo at the time of the direction, due to the suspension of the development plan examination. In the direction, the secretary of state had concluded that implementation of the urban extension proposal was not "reasonably foreseeable" because it had not been approved, either in the form of a development plan allocation or a planning permission.

CEG applied for judicial review of the direction on the basis that this was an irrational decision and that the secretary of state had failed to take account of the proposal for allocation of the land as part of the urban extension. But Mr Justice Stuart-Smith held that the secretary of state’s decision on the direction was lawful, because he had asked himself the correct question and answered it by reference to the correct criteria.

An important element of the court’s decision related to the interpretation of the phrase "reasonably foreseeable". The claimant had argued that the phrase should be given the same meaning as in the common law of negligence. However, the court did not agree that the common law meaning should apply in the context of European EIA guidance.

Through its proposals to increase the thresholds for screening put forward in July’s technical consultation on planning, the government is seeking to reduce the administrative burden resulting from EIA screening. This case appears to follow the view that "there has to be a sensible limit to what a screening decision-maker is expected to do", as expressed by Mr Justice Lindblom in R (ex parte Hockley) v Essex County Council and Another [2013].

Commercial Estates Group Limited v Secretary of State for Communities and Local Government and Others; Ref: [2014] EWHC 3089 (Admin); Date: 3 October 2014

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