The main principles of EIA law are well-known. The court decisions since our last blog focus on the application of those principles.
Defining the project
Large scale developments are often master-planned and then proceed in phases. Inevitably there are disputes about "salami-slicing", ie. whether undertaking EIA of part only of the large-scale development is appropriate.
In the Ashchurch Rural Parish Council case, the judge rejected the argument that a road bridge could not be considered in isolation from the rest of a masterplan development even though the bridge was only being constructed to facilitate the future phases of the masterplan. The other phases in the masterplan were aspirational, and would be subject to EIA in the future.
The Hough case involved a former military camp. Planning permission had been granted for development split into 4 phases. A special development order granted planning permission for use of part of the site for asylum accommodation.
The claimant alleged that the SDO screening opinion failed to take into account the in-combination effects with the development proposals for the rest of the site. The judge held the opinion fell within the scope of appropriate judgment, despite only brief reference to the adjoining proposed development.
Multi-stage consents
Often full details of a project are not available at the consenting stage. Recent legal challenges involved an event management plan for a sports stadium, and visitor facilities for a spaceport. The courts rejected claims that the absence of those details prevented effective EIA.
The Rochdale approach enables EIA to be undertaken on a design envelope, with the consent requiring the development to be carried out in accordance with the parameter plans.
The Swire case involved a claim that the masterplan subsequently approved materially strayed outside the parameter plan. The court held that "in accordance with" did not impose a requirement for rigid adherence to the principles of the parameter plans. Whether a development was in conformity or harmony with parameter plans involved matters of planning judgment and degree.
The outline permission had been subject to EIA, but the claimant argued the approval of the masterplan also required EIA. The judge rejected the "excessively legalistic argument" and held that the officer had considered the overall adequacy of the environmental information.
Downstream effects
In the Finch case, the Court of Appeal upheld the earlier judge's decision that EIA only assesses effects which the development itself has on the environment, and not the environmental effects which result from the consumption, or use, of an end product, eg. oil. The court said there needs to be a "degree of connection".
The Supreme Court has given permission for this decision to be appealed.
Additional environmental information
The regulations require publication of "additional information" submitted during the consent process. That does not apply to all/ any information submitted – the definition refers to "substantive information".
In the Wildland case, the judge held that the Council were entitled to decide that neither the Visitor Management Strategy Clarifications nor the RSPB Technical Note required publication: the VMSC provided clarifications, did not change the scope of the development, and did not alter the conclusions of the EIAR; the RSPB Technical Note primarily showed where in the EIAR the issues raised by RSPB had been addressed, and therefore provided clarification of matters already covered in the EIAR.
Risk of legal challenge
Most EIA challenges are unsuccessful (none of those mentioned above succeeded). EIA approaches and methodologies have matured, especially in the onshore wind sector. Project teams know the risks of taking short-cuts.
Screening and scoping decisions, and grants of consents, often involve planning judgment, which the courts are reluctant to intervene on.
