The Raeshaw Farms decision is a reminder of the practical difficulties of the concept of "the project" within environmental impact assessment.
"the project"
It is a well-established legal principle of environmental impact assessment that a development should not be considered in isolation if it is an integral part of a larger project: in that situation, the “project” for EIA purposes is the larger project, not the development described in the application.
Previous court decisions have involved debates whether a bridge is part of a housing project; if a link road is part of a housing project; and whether two mixed use developments were a single project.
As this issue can arise in a wide range of circumstances, how does a decision-maker decide if the development forms part of a larger project? The judge in the Wingfield decision set out a non-exhaustive list of relevant factors: common ownership; simultaneous determinations; functional interdependence; stand-alone projects.
These factors can be difficult to apply. For example, although there was a functional relationship between a sewage pumping station and a housing development, there was not functional interdependence, because the pumping station also served other developments.
Raeshaw Farms decision
In Raeshaw Farms the Court of Session quashed the decision to grant planning permission for the Wull Muir wind farm, on the grounds that the decision-maker failed to address the critical issue of whether the wind farm and the associated grid connection are a single project.
In effect, the Court decided the decision-maker had not asked a question that the law required to be asked. That cast doubt on the decision reached to grant the permission, hence the Court deciding to quash the permission.
The quashing of the decision resulted in the appeal having to be redecided, which is on-going at present. The revived appeal will decide if the grid connection is part of the wind farm project – the judges did not reach any conclusion on that.
Dealing with uncertainty
Widening the scope of EIA to include future development is not necessarily straightforward. Often very little information will be available. Judges have warned against speculation:
"Conjecture and speculation have no place in the EIA process. Thus, if there is insufficient evidence available to found a reasoned conclusion that a possible environmental effect is "likely", there is no requirement to identify, describe and try to assess this putative effect."
A recent Court of Session decision acknowledged that a high level assessment was sufficient where the precise environmental effects would not be known until the route of a new pipeline was determined.
The Scottish Government are preparing technical guidance on dealing with this uncertainty.
Recent practice, eg. the Cairnmore wind farm consent, indicates that multi-stage conditions can be used to address uncertainties about future infrastructure. That involves imposing a condition on the consent being granted, preventing the commencement of the development until detailed environmental information is available about the remainder of "the project".
Use of environmental information
The EIA process provides environmental information. The difficulty of providing information about the wider project is that the decision-maker is not deciding whether to consent the wider project, just the development proposed in the consent application. The decision-maker should not therefore be reviewing in detail whether the rest of the wider project is acceptable, as that is an issue for future consenting processes.
So what is the relevance of the environmental information about the rest of "the project"? In Raeshaw Farms the court pointed out the benefits of the development should not be taken into account without also considering any adverse impact it might have. Sufficient information on the benefits/ impacts of the wider project can be provided in a high level assessment.
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