There was a lively discussion about 'myth-busting' the legal issues surrounding EIA, in Brodies' workshops at Scotland's EIA Conference. Here's our top ten.
Non-EIA development has a lesser status
Actual position - consent can be refused on grounds of environmental impact even if there is no EIA.
Every large project will require EIA
Scale makes EIA more likely but it is not determinative. For example, development on a 207Ha site for 98MW of solar and 100MW of battery storage did not require EIA.
Requirements of Schedule 2
There are misconceptions because some of the Schedule 2 categories are broad and vague, eg. "urban development projects"; and the categories do not necessarily reflect modern development types or technologies, particularly in the renewable energy sector. That gives scope for inconsistent approaches to screening.
Salami-slicing “the project”
The court decisions indicate that developments cannot be split into component parts to avoid or reduce the scope of EIA. However, although there are frequent complaints about salami-slicing, those are rarely upheld by the courts. The "bridge to nowhere" is an exception.
EIA is not required under permitted development (PD) rights
The actual position is that EIA development is excluded from PD rights. That explains the recent legal challenge to a screening in relation to demolition in Glasgow - if EIA was required, the demolition could not proceed without submission of a planning application.
Scoping – needs to include the “usual” chapters
Not necessarily. The point of scoping is for the EIA undertaken to be focussed and relevant. A shorter but bespoke EIAR is likely to be of more benefit than a comprehensive one based on a standard template. The precautionary principle does not apply - only to habitats regulation appraisal.
EIA needs to show no alternative sites
This is the actual requirement:
“A description of the reasonable alternatives (for example in terms of development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects.”
EIA is a waste of time – it does not affect the outcome
If consultants say “no go” at the beginning, the project is unlikely to proceed to EIA; and EIA is part of iterative design process, to avoid the final design having unacceptable impacts.
Significant impacts mean refusal of planning permission
The environmental information is only one of many factors to be taken into account in deciding whether to grant consent. The issue is the weight given to each factor, and the overall "planning balance".
Judicial review is a significant risk
To borrow the language of EIA, the magnitude of the risk is significant but the likelihood of it actually occurring is low. In Scotland, we continue to see relatively few judicial review challenges. That said, nobody wants their development to be the exception to the rule…
Much of EIA consists of exercise of professional judgment, and the courts have made it clear they will not get involved unless the judgment is irrational or perverse.
If you want to hear more about EIA, listen to our Planning Live with Josh Fothergill.
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